United States District Court, D. South Carolina, Rock Hill Division
Ekoko K. Avoki, Francisco K. Avoki, Plaintiffs,
City of Chester, SC; Police of Chester, SC; United States of America; PTL Covington; John Does I-XXX; Defendants.
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
brought this action alleging violations of their civil rights
and state law claims. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this
matter was referred to United States Magistrate Judge Paige
J. Gossett for pre-trial proceedings. On August 8, 2017, the
Magistrate Judge issued a Report and Recommendation
(“Report”) recommending that Defendant United
State of America be dismissed from this action without
prejudice and without service of process. ECF No. 23.
Plaintiffs filed objections to the Report on August 22, 2017.
ECF No. 26. Plaintiffs filed a supplement to their objections
on August 28, 2017. ECF No. 27.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See U.S.C. § 636(b).
The Court will review the Report only for clear error in the
absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of timely
filed objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” (citation omitted)).
Magistrate recommends that the United States of America be
dismissed because Plaintiffs have failed to allege facts that
would show the Court has jurisdiction over Plaintiffs'
Federal Tort Claims Act (“FTCA”) claim. ECF No.
23 at 3. The Magistrate states that Plaintiffs have not
alleged any facts regarding the United States, any federal
agency, or any federal employee and that Plaintiffs have
failed to allege that they have exhausted their
administrative remedies. Id. at 4. Neither
Plaintiffs objections nor the Second Amended Complaint, filed
after the issuance of the Report, have cured these
initial matter, Plaintiffs have not made any allegations
concerning a federal agency or a federal employee. Plaintiffs
entire Complaint, Amended Complaint, and Second Amended
Complaint involve allegations against the City of Chester,
the City of Chester Police Department, and City of Chester
employees. ECF Nos. 1, 10, 53. Accordingly, the FTCA is not
the proper remedy.
the Court notes that Plaintiffs attached an administrative
letter and a copy of a Standard Form 95 completed by
Plaintiffs, presumably as evidence that they have exhausted
their administrative remedies. ECF Nos. 26-1, 26-3. However,
an administrative claim must first be filed with the
appropriate federal agency, and finally denied by the agency,
before commencement of a civil action in a district court
under the FTCA. See 28 C.F.R. § 14.2; the
Standard Form 95; 28 U.S.C. § 2401(b) (a tort claim
"shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years
after such claim accrues"). Under the FTCA, "the
requirement of filing an administrative claim is
jurisdictional and may not be waived." Henderson v.
United States, 785 F.2d 121, 123 (4th Cir.1986). Here,
Plaintiffs do not allege that they have submitted a Standard
Form 95 to an appropriate federal agency or that a federal
agency has finally denied their claim. Accordingly,
Plaintiffs have failed to allege a plausible claim under the
FTCA; thus, the United States of America should be dismissed.
considering the record in this case, the applicable law, the
Report of the Magistrate Judge, and Plaintiffs'
objections and supplement, the Court finds Plaintiffs have
failed to allege a plausible claim against the United States
of America. Accordingly, the Court adopts the Report by
reference in this Order and overrules the objections. The
United States of America is DISMISSED without prejudice and
without service of process.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate
In the box of the Standard
Form 95 that reads “Submit to Appropriate Federal
Agency, ” Plaintiffs list the Mayor of the City of
Chester. The Mayor of Chester is ...