Filed: Mar. 27, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 27, 2008 No. 07-12665 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 07-00663-CV-T-26-MAP RAY B. POMPEY, Plaintiff-Appellant, versus MICHAEL CHRISTOPHER COAD, KEARY HUNDT, RICHARD ZAYAS, MARIAH B. PIPER, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (March 27, 2008) Before BIRCH, DUBINA and
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 27, 2008 No. 07-12665 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 07-00663-CV-T-26-MAP RAY B. POMPEY, Plaintiff-Appellant, versus MICHAEL CHRISTOPHER COAD, KEARY HUNDT, RICHARD ZAYAS, MARIAH B. PIPER, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (March 27, 2008) Before BIRCH, DUBINA and M..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 27, 2008
No. 07-12665
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-00663-CV-T-26-MAP
RAY B. POMPEY,
Plaintiff-Appellant,
versus
MICHAEL CHRISTOPHER COAD,
KEARY HUNDT,
RICHARD ZAYAS,
MARIAH B. PIPER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 27, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Ray B. Pompey, proceeding pro se, appeals the district court’s dismissal of
his complaint, pursuant to 28 U.S.C. § 1915A, for failure to state a claim. In his
complaint, Pompey alleged that the defendants violated his civil rights while he
was cooperating with authorities. The district court concluded that Pompey’s
claims against three defendants (Keary Hundt, Richard Zayas and Mariah Piper)
were barred by res judicata, while his claims against defendant Michael Coad
failed under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, based on a
failure to exhaust administrative remedies before filing suit. On appeal, Pompey
challenges these determinations. After through review of the record and careful
consideration of Pompey’s claims, we affirm.
We review dismissals pursuant to 28 U.S.C. § 1915A de novo, taking the
allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th
Cir. 2006), cert. denied,
127 S. Ct. 1908 (2007). The standards that apply to a
dismissal under Fed. R. Civ. P. 12(b)(6) apply to a dismissal under § 1915A(b)(1).
Jones v. Bock, __ U.S. __,
127 S. Ct. 910, 921,
166 L. Ed. 2d 798 (2007); see also
Leal v. Georgea Dep’t. of Corr.,
254 F.3d 1276, 1278-1279 (11th Cir. 2001)
(finding that the language in § 1915A(b)(1) “mirrors” the language in dismissals
under 28 U.S.C. § 1915(e)(2)(B)(ii) which “tracks” the language in Fed. R. Civ. P.
12(b)(6)). “A complaint is subject to dismissal for failure to state a claim if the
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allegations, taken as true, show the plaintiff is not entitled to relief. Jones, 127
S. Ct. at 920.
The relevant facts are these. On April 17, 2007, Pompey filed this action
alleging that, on April 28, 2005, he was assisting law enforcement officers with an
unsuccessful controlled drug buy, during which $1,100 in cash was lost.
According to Pompey, after the failed drug buy, he returned to his motel room
where four special agents from the Bureau of Alcohol Tobacco and Firearms
(“ATF”) -- defendants Hundt, Zayas and Coad -- and defendant Mariah Piper, an
officer with the St. Petersburg Police Department visited him the following day.
Pompey alleged that the defendants entered his hotel room without his consent and
without a warrant and began searching the room, instructing Pompey to be quiet.
When Pompey began to speak, Special Agent Coad threatened Pompey with
violence, at which point the other officers did nothing. During the search, Special
Agents Hundt and Coad found a closed cigar box underneath the bed. The box
contained two bags of marijuana. According to Pompey’s complaint, at that point,
Special Agent Hundt began interrogating him, and, when Pompey answered one of
Hundt’s questions, Special Agent Coad punched him in the chest. Pompey
subsequently was arrested, but before being booked was taken to Edward White
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Hospital, where he was treated. Pompey sought damages in the amount of
$100,000.
After the filing of his complaint, Pompey sought leave to proceed in forma
pauperis (“IFP”). In support of his application, he attached a number of
documents, including two letters to the ATF in which he responded to requests for
medical records substantiating his claims. According to the letters, the ATF’s
request for medical records was dated February 10, 2007. Pompey responded to
the request in a letter dated April 7, 2007, in which he stated that he would no
longer seek relief in the ATF’s office, but would file a civil complaint.
Pompey also attached to his IFP application two pages from a court order in
an earlier case he had filed against the same defendants, in the United States
District Court for the Middle District of Florida, Pompey v. Coad, No.
8:06-cv-01542-EAK-EAJ (“Pompey I”). In August 2006, the Pompey I case,
which was before the same district judge as the instant one, had been dismissed
with prejudice, based on res judicata, as to the claims against defendants Hundt,
Zayas and Piper and dismissed without prejudice, for failure to exhaust
administrative remedies under the FTCA, as to the claim against Coad.
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In the instant suit, Pompey also filled out a Form 95 for his damages claim
under the FTCA, but did not sign or date the document seeking $100,000 in
damages.
Prior to service of process, the district court reviewed the present complaint
sua sponte, under 28 U.S.C. § 1915A. The district court noted, with respect to
defendants Hundt, Zayas, and Piper, that Pompey had previously sued them in an
earlier action (Pompey I) for violations allegedly arising out of the same incident.
The district court observed that it had dismissed with prejudice Pompey’s claims
against those defendants, and that Pompey did not appeal the dismissal. The court
concluded that the dismissal with prejudice was binding on Pompey, meaning that
he was precluded from bringing the same claims in the present proceeding.
Accordingly, the district court dismissed the present complaint as to Hundt, Zayas,
and Piper.
With respect to defendant Coad, the district court noted that Pompey
previously sued him for a violation of the FTCA, and that the Pompey I dismissal
was without prejudice for failure to exhaust remedies. Based on Pompey’s failure
to allege, in the present complaint, that he had exhausted administrative remedies
under the FTCA, the district court again dismissed the complaint as to Coad. This
appeal followed.
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Res judicata bars a future action if four elements are met: (1) the prior
decision must have been rendered by a court of competent jurisdiction; (2) there
must have been a final judgment on the merits; (3) both cases must involve the
same parties or their privies; and (4) both cases must involve the same causes of
action. In re Omine, 485 F.3d 1305, 1311-1312 (11th Cir. 2007). The district
court did not err by dismissing Pompey’s claims against Hundt, Zayas and Piper
because they were barred by res judicata. Pompey admitted to filing an earlier
action against the same individuals in his complaint, and he attached a portion of
an order from that case to his IFP application. It is undisputed that Pompey failed
to appeal the district court’s dismissal with prejudice of the claims against Hundt,
Zayas and Piper. On this record, each of the elements set forth above were
satisfied. Accordingly, there was no claim against the three defendants in which
Pompey was entitled to relief, and dismissal under § 1915A was appropriate.
As for Pompey’s suit against Coad, the FTCA allows claims against the
government where the United States would be liable in accordance with the law of
the place where the act occurred. See 28 U.S.C. § 1346(b)(1). The FTCA was
designed to provide redress for ordinary torts recognized by state law. Ochran v.
United States, 273 F.3d 1315, 1317 (11th Cir. 2001). A claimant under the FTCA,
however, must meet certain exhaustion requirements before a federal court may
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exercise jurisdiction over a suit under the FTCA, including presentation of a claim
to the appropriate federal agency and denial of the claim by the agency. See 28
U.S.C. § 2675(a); Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994).
The failure of the agency to make a final disposition within six months after it is
filed shall, at the option of the claimant any time thereafter, be deemed a final
denial of the claim. See 28 U.S.C. § 2675(a). Because Pompey did not allege facts
sufficient to show that he exhausted administrative remedies -- a jurisdictional
prerequisite to his suit under the FTCA -- the district court properly dismissed his
complaint.
AFFIRMED.
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