Hart v. US Department of the Treasury et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. Civil No. 14-cv-421-LM
U.S. Department
of the Treasury et al.1
REPORT AND RECOMMENDATION
Before the court is the complaint (doc. no. 1) and
complaint addenda (doc. nos. 5 and 6),2 filed by pro se and in
forma pauperis plaintiff Kenneth Hannibal Hart. The pleadings
are before this magistrate judge for preliminary review under LR
1Defendants listed in the complaint are: the U.S. Department
of the Treasury; U.S. Treasury Secretary Jacob J. (“Jack”) Lew;
former U.S. Treasury Secretary Timothy Geithner; the United
States of America; the Federal Bureau of Investigation; and two
former U.S. Treasury Secretaries, identified as “John Doe #1”
and “John Doe #2,” who served as Treasury Secretary under former
Presidents Ronald Reagan and William Clinton, respectively; and
“John Doe #3,” who plaintiff describes as including all agencies
and organizations responsible for issuing plaintiff’s criminal
record. In the complaint addendum (doc. no. 6), plaintiff adds
the Office of the Comptroller of the Currency, Comptroller John
C. Dugan, and U.S. Attorney General Eric Holder as defendants.
2In a separately docketed order, this court has granted
Hart’s motions to add a new claim for relief and new defendants
to this action (doc. nos. 5 and 6), subject to preliminary
review under LR 4.3(d)(1).
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4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. See
28 U.S.C. § 1915A(b). In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To
survive preliminary review, the complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). The court treats as true all well-pleaded
factual allegations, and construes reasonable inferences in
plaintiff’s favor. See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011).
Background
Citing this court’s jurisdiction over cases presenting
federal questions, 28 U.S.C. § 1331, and actions to redress
civil rights violations, 28 U.S.C. § 1343, Hart alleges that the
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United States Treasury Department failed to exercise due care in
mailing him checks that he has not received, and that there is a
conspiracy among federal, state, and municipal officials to
defraud him and steal his identity. Hart further alleges that
he has been wrongly convicted in various state and federal
courts, that there are errors in his criminal record, that his
FBI record should not exist, and that defendants and other
government officials should be investigated and prosecuted for
criminal conduct.
Discussion
I. Misdelivery of Checks, Conspiracy, and Identity Theft
Hart’s assertions regarding the misdelivery of government
checks, conspiracy, and theft of his identity fail to state any
actionable claim of a violation of any federal right, upon which
relief can be granted under the authorities he has cited,
including 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Those
claims should be dismissed.
Hart’s allegations regarding the Treasury Department’s
mailing checks to the wrong address also fail to state any
actionable claim under the Federal Tort Claims Act, 28 U.S.C. §§
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2671-80 (“FTCA”), in that Hart has failed to allege that he
exhausted his administrative remedies on his claims. See
Conjugal P’ship Acevedo-Principe v. United States, 768 F.3d 51,
55 (1st Cir. 2014) (prior presentment of claim to agency under
28 U.S.C. § 2675(a) is necessary prerequisite to suit).
Accordingly, the FTCA claims arising out of the misdelivery of
his government checks should be dismissed, without prejudice to
Hart refiling an FTCA claim after he has exhausted his
administrative remedies.
II. Criminal Record and Investigation/Prosecution of Defendants
Hart’s claims regarding alleged wrongful convictions and
errors in his criminal record fail to state claims upon which
relief can be granted. To the extent Hart seeks to challenge
the validity of any state conviction that has not been
invalidated by any official action, Hart’s claims cannot be
litigated as civil rights claims in this court. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994)); see also Meehan v.
Plymouth, 167 F.3d 85, 88-89 (1st Cir. 1999) (favorable
termination of criminal proceedings is element of malicious
prosecution claim). Further, Hart’s claims asking this court to
order an investigation and prosecution of defendants and third
parties for criminal conduct should be dismissed on the basis of
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lack of standing. See Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973) (individual has no “judicially cognizable interest in
the prosecution or nonprosecution of another”).
Conclusion
As discussed herein, the district judge should dismiss
Hart’s FTCA claims without prejudice. The remaining claims
asserted in the complaint should be dismissed for failure to
state a claim upon which relief can be granted.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the District Court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 19, 2014
cc: Kenneth Hannibal Hart, pro se
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