The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.
E-FILED Tuesday, 20 November, 2012 05:06:52 PM Clerk, U.S. District Court, ILCD
This cause is before the Court on the Motion to Dismiss Claim Against United States of America (d/e 33) and Amended Motion to Dismiss Claim (d/e 38), which the Court has converted, in part, to Motions for Summary Judgment. For the reasons that follow, the Motions are GRANTED IN PART and DENIED IN PART.
On January 3, 2012, Plaintiff Robert L. Davis filed a pro se Complaint on a pre-printed form. Plaintiff named several defendants, including Ray Willis and Michael McAfee, two employees of the United States Department of Housing and Urban Development (HUD) located in Chicago. As is relevant to the instant motions, the Complaint alleged that Willis and McAfee, of the Chicago HUD office, did not help Plaintiff with problems he was having with the Springfield Office of Planning and Economic Development (OPED) program, which was designed to assist individuals with fixing their homes. The problems included an improper increase in Plaintiff's property taxes, which caused his mortgage payment to increase (because his property taxes were escrowed), and ultimately led to the mortgage lender foreclosing on Plaintiff's home. Plaintiff alleged he wrote to the HUD office in Washington, D.C. because he was threatened by McAfee, who said he would "bust me in the chops if he ever see me" and told Plaintiff not to call the office again. See d/e 1.
In May 2012, Plaintiff filed a document which asserted, for the first time, claims of racial discrimination against the other defendants in the case. See (d/e 26). The Court treated Plaintiff's document as a motion for leave to file an amended complaint, which the Court granted.
Plaintiff was directed to file an amended complaint on or before June 22, 2012. See d/e 27. Plaintiff moved for an extension of time (d/e 30), and the Court set the matter for hearing on July 9, 2012. See June 26, 2012 Text Order.
On June 21, 2012, the United States filed a Motion for Substitution of United States as Defendant. See d/e 29. The United States attached thereto a Certification that Willis and McAfee "were within the scope of their office or employment at the time of the incidents that gave rise to the claims against them." See James A. Lewis, Acting U.S. Attorney Certification. (d/e 29-1). The United States asserted that Plaintiff was in fact suing the United States because he alleged wrongdoing by government employees acting within the scope of their employment. See d/e 29, p. 2, citing 28 U.S.C. § 2679(d)(1) ("Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States"). United States Magistrate Judge Byron G. Cudmore granted the Motion to Substitute the United States for Defendants Willis and McAfee.*fn1
On June 29, 2012, the United States filed a Motion to Dismiss (d/e 33) on grounds of improper service and for failure to exhaust administrative remedies. This Court subsequently directed the clerk to prepare the appropriate summons for service on the United States, and the United States has now been properly served. See September 27, 2012 Text Order; d/e 46 (Summons); d/e 47 (Summons returned); d/e 50 (Summons returned).
In the Motion to Dismiss, the United States interprets Plaintiff's complaint as a tort claim intended to be filed under the Federal Tort Claims Act (FTCA). The United States attached to the Motion the Affidavit of Miniard Culpepper, Regional Counsel for the New England Region for the United States Department of Housing and Urban Development. See d/e 33-1
In the Affidavit, Culpepper states that he is responsible for reviewing and processing of all tort claims filed with HUD pursuant to the FTCA. Affidavit ¶ 2 (d/e 33-1). A search of the files in his office has been conducted. Affidavit ¶ 3 (d/e 33-1). Based on this search, and to the best of his knowledge, Plaintiff has not filed a claim for injury or damages with HUD. Affidavit ¶ 3 (d/e 33-1).
On July 9, 2012, this Court held a hearing on Plaintiff's pending motions and to clarify whether Plaintiff had facts to support his allegations. In response to the United States' assertion that Plaintiff failed to exhaust his administrative remedies, Plaintiff stated that he did complain to HUD and HUD sent him a letter disagreeing with him. This Court gave Plaintiff until August 9, 2012 to file an amended complaint and granted the United States leave to amend its Motion to Dismiss after Plaintiff filed the amended complaint.
On August 6, 2012, Plaintiff filed a "List of Questions" that included Plaintiff's responses to some of the questions asked by the Court at the July 9 hearing. See d/e 35. This Court construed the List of Questions as Plaintiff's Amended Complaint. August 7, 2012 Text Order. As is relevant to the United States, Plaintiff alleges that:
HUD Chicago Office would not respond to my letters so I called them[.] I talked to Ray Willis three times[.] [H]e said talk to Michael McAfee[,] he can help you[.] I talked to Michael McAfee about 10 times[.] He never sent me a letter like he said he would do[.] Mr. McAfee did threaten me so I[,] Robert Davis[,] wrote to [the] HUD office in Washington, D.C. because Mr. McAfee said he would bust me in my chops if he ever see ...