UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 4:20-cv-10087-KMM

VALENTIN SPATARU

Plaintiff,

v.

FEDERAL AVIATION ADMINISTRATION,

Defendant.

 /

ORDER 

THIS CAUSE came before the Court upon pro se Plaintiff Valentin Spataru’s (“Plaintiff”) 

Motion for Leave to Proceed In Forma Pauperis. (“Mot.”) (ECF No. 3). On July 29, 2020, Plaintiff

filed a Complaint against the Federal Aviation Administration (“FAA”). (“Compl.”) (ECF No. 1). 

On the same day, Plaintiff filed the instant Motion. Therefore, the screening provisions of 28 

U.S.C. § 1915(e) apply.

The basis of Plaintiff’s Complaint is that he was injured when a helicopter illegally flew 

too close to his sailboat, causing him mental distress. Compl. at 3. Moreover, Plaintiff alleges 

that the next morning, due to the mental distress, Plaintiff fell and physically injured himself. Id. 

Plaintiff is suing the FAA because Plaintiff requested that the FAA identify the pilot of the 

helicopter, which the FAA failed to do. Id. at 6. In the Complaint, Plaintiff seeks damages against 

the FAA for constitutional torts, state law torts, pursuant to the Racketeer Influenced and Corrupt 

Organizations (“RICO”) Act, 18 U.S.C. §§ 1961–1968, and Title II of the Americans with 

Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12134. See generally id. Additionally, Plaintiff 

requests that the Court order the FAA to investigate this incident. See generally id. 

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Pursuant to 28 U.S.C. § 1915(e), the court is permitted to dismiss a case at any time if the 

court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim on which 

relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 

relief. A pro se litigant is entitled to the court’s liberal construction of the complaint. Haines v. 

Kerner, 404 U.S. 519, 520–21 (1972). However, even under the liberal construction afforded to 

pro se litigants, the complaint must establish a valid cause of action. See Petersen v. Smith, 762 

F. App’x 585, 593 (11th Cir. 2019). Section 1915(e)(2)(B)(ii) mirrors the language of Rule 

12(b)(6) of the Federal Rules of Civil Procedure, and courts apply the same standard in both 

contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Thus, a complaint “must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)).

Moreover, the U.S. Supreme Court has instructed that § 1915 provides a court “not only 

with the authority to dismiss a claim based on an indisputably meritless theory, but also the unusual 

power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose 

factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 119, 327 (1989). Factual 

allegations that are “fanciful,” “fantastic” and “delusional”' are considered clearly baseless. 

Denton v. Hernandez, 504 U.S. 25, 32–33 (1992).

The United States and its agencies are immune from suit except upon waiver of sovereign 

immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); Rykers v. Alford, 832 F.2d 895, 897 

(1987). Waiver of the United States’ sovereign immunity must be expressly stated by congress 

and should not be inferred. In re Custom Contractors, LLC, 745 F.3d 1342, 1347 (11th Cir. 2014) 

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(citations omitted). The Federal Tort Claims Act (“FTCA”) waives the sovereign immunity of the 

United States for certain torts committed by federal employees. 28 U.S.C. § 1346(b).

Under the FTCA, the United States is liable for the negligent conduct of its employees “in 

the same manner and to the same extent as a private individual under like circumstances.” 28 

U.S.C. § 2674; see also § 1346(b). The FTCA was not intended to create new causes of action; 

nor was it intended as a means to enforce federal statutory duties. See Sellfors v. United States, 

697 F.2d 1362, 1365 (11th Cir. 1983). Instead, Congress’ chief intent in drafting the FTCA was 

simply to provide redress for ordinary torts recognized by state law. See id. “Unless the facts 

support liability under state law, the district court lacks subject matter jurisdiction to decide an 

FTCA claim.” Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (citing Lawrence 

v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990)).

Here, dismissal of Plaintiff’s Complaint is warranted. First, the Court does not have 

jurisdiction to the extent that Plaintiff requests that the Court review the FAA’s failure to 

investigate the pilots. See Baltimore Air Transp., Inc. v. Jackson, 419 F. App’x 932, 935–36 (11th 

Cir. 2011). Specifically, 28 U.S.C. § 1486(a) vests the circuit courts with exclusive jurisdiction to 

review the final orders of the FAA. Id. And, the Eleventh Circuit has held that the exclusive 

jurisdiction of the courts of appeal includes the FAA’s inaction, such as a failure to investigate,

because inaction might affect the future adjudicative power of the circuit court. See id.; George 

Kabeller, Inc. v. Busey, 999 F.2d 1417, 1422 (11th Cir. 1983). As such, the Court does not have 

subject matter jurisdiction over Plaintiff’s request that the Court order the FAA to investigate this 

incident. 

Second, a district court does not have jurisdiction over a claim for damages that is 

“inescapably intertwined with a review of the procedures and merits surrounding the FAA’s 

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orders.” See Baltimore Air Transp., Inc., 419 F. App’x at 935–36. And, Plaintiff’s claim for 

damages seeks judicial review of the FAA’s failure to investigate, which the Court does not have 

jurisdiction to consider. See id.

Nevertheless, Plaintiff fails to state a claim for damages. First, Plaintiff may not bring a 

claim for damages for a constitutional tort against the FAA. See McCollum v. Bolger, 794 F.2d 

602, 608 (11th Cir. 1986) (federal constitutional torts are not within the scope of the FTCA); 

Gonzales-Corrales v. I.C.E., 522 F. App’x 619, 623 (11th Cir. 2013) (“[A] plaintiff may not bring 

a Bivens action against a federal agency or a federal officer acting in his official capacity.”). 

Second, Plaintiff fails to state a claim under Title II of the ADA because Title II of the ADA is 

inapplicable to the federal government. See Hunt v. Warden, 748 F. App’x 894, 898–99 (11th Cir. 

2018) (citations omitted). 

Third, Plaintiff fails to state a claim against the FAA for his state law claims—negligence, 

negligent infliction of emotional distress, and intentional infliction of emotional distress. 

Specifically, Plaintiff alleges that the FAA is jointly liable with the pilots for his injuries. Compl. 

at 9. Multiple tortfeasors may be held jointly and severally liable under Florida law “when 

the tortfeasors, acting in concert or through independent acts, produce a single injury.” Acadia 

Partners, L.P. v. Tompkins, 759 So. 2d 732, 736 (Fla. Dist. Ct. App. 2000); see also Merrill 

Crossings Assocs. v. McDonald, 705 So. 2d 560, 560–62 (Fla. 1997) (holding the doctrine 

of joint and several liability applies to intentional torts). Here, Plaintiff does not allege that the 

FAA acted in concert with the pilots to cause his injuries. Compl. at 9. Rather, Plaintiff merely 

alleges that the FAA failed to investigate or identify the pilots after the incident occurred. Id. As 

such, Plaintiff fails to allege that the FAA is jointly liable for his injuries. See Acadia Partners, 

L.P., 759 So. 2d at 736.

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Fourth, Plaintiff fails to state a claim under the RICO Act. One of the elements of a RICO 

violation is a pattern of racketeering activity. See Crawford’s Auto Center, Inc. v. State Farm Mut. 

Auto. Ins. Co., 945 F.3d 1150, 1158 (11th Cir. 2019) (citations omitted). To establish a pattern of 

racketeering activity, a plaintiff must allege at least two qualifying predicate acts, each of which 

must constitute a violation of one of the state or federal laws described in 18 U.S.C. § 1961(1). 

See id. And, Plaintiff does not allege any predicate criminal activity as set forth in § 1961. 

Accordingly, UPON CONSIDERATION of the Motion, the Complaint, the pertinent 

portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED 

AND ADJUDGED that the Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE and 

the Motion to Proceed In Forma Pauperis (ECF No. 3) is DENIED AS MOOT. The Clerk of the 

Court is instructed to CLOSE this case. All pending motions, if any, are denied as MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of August, 2020. 

 _______________________________________ 

K. MICHAEL MOORE

 CHIEF UNITED STATES DISTRICT JUDGE 

c: Plaintiff, pro se

13th

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