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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

EDWARD R. MILLER,

Plaintiff,

v. CASE NO. 1:10-cv-00038-SPM-GRJ

UNITED STATES OF AMERICA,

et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court are: (1) the United States’ Motion To Dismiss Or In

The Alternative Motion For Summary Judgment (Doc. 12, and (2) Federal Public

Defenders of New York, Inc.’s Motion To Dismiss. (Doc. 17.) Plaintiff has filed a

response to each motion (Docs. 27 & 28) and, accordingly, the motions are ripe for

consideration. For the reasons discussed below, it is recommended that the motions to

dismiss should be GRANTED. 

I. BACKGROUND AND FACTS

Plaintiff was indicted in the Southern District of New York on October 10, 2003

for failure to pay approximately $237,000 in child support over a period longer than two

years and was arrested in Gainesville, Florida. (Doc. 12 Exh. A). On March 4, 2004,

Paul Davison, Plaintiff’s federal public defender in the Southern District of New York,

filed a motion to transfer the criminal case to the U.S. District Court for the Middle

District of Florida for prosecution. (Doc. 19.) Plaintiff’s motion was granted and criminal

proceedings were initiated against Plaintiff in the United States District Court for the
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Middle District of Florida on April 20, 2004 in Case No. 8:04-cr-207-JSM-MAP. (Doc.

12.) A jury trial was held and Plaintiff was acquitted of the offense on January 6, 2005. 

(Doc. 18 Exh. 1.)

On May 21, 2009, a New York state court issued an Income Withholding for

Support Order for child support payments, which resulted in the garnishment of

Plaintiff’s Social Security benefits. (Doc. 20 pp. 20-22, 66-71.) Plaintiff filed a

complaint on September 16, 2009 in the U.S. District Court for the Middle District of

Florida in Case No. 8:09-CV-1898-JDW-AEP challenging the garnishment. (Doc. 12

Exh. C.) The complaint in the present action was filed on March 16, 2010. (Doc. 1.) 

Plaintiff brings this action pro se against the United States, several federal

agencies, seven county jails, and the federal defenders office in New York, a private

corporation, for damages resulting from the criminal proceedings for failure to pay child

support which culminated in his arrest, incarceration, and trial in Florida. (Doc. 1.) 

Plaintiff alleges jurisdiction in this Court based on a number of federal statutes,

constitutional amendments, and social security disability benefits regulations. 

II. DISCUSSION

Defendant United States has filed a Motion To Dismiss Or In The Alternative

Motion For Summary Judgment (Doc. 12), which this Court converted to a motion for

summary judgment. (Doc. 16.) In its motion, Defendant United States asserts that this

Court lacks subject matter jurisdiction over certain of Plaintiff’s claims, that Plaintiff

failed to exhaust his administrative remedies under the Federal Tort Claims Act

(“FTCA”), that Plaintiff’s claims under Bivens v. Six Unknown Agents are barred by

sovereign immunity and time-barred, and that Plaintiff’s claim against the Social

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Security Administration is barred by res judicata. FPDNY has also filed a Motion To

Dismiss (Doc. 17), in which it argues that Plaintiff’s claims against it should be

dismissed for lack of personal jurisdiction, insufficient process and insufficient service of

process. The Court will address each motion in turn, and then will proceed to discuss

Plaintiff’s claims against the remaining Defendants in this case.

A. Motion To Dismiss Filed By Defendant United States of America

Plaintiff alleges that he is mentally disabled, manic-depressive, and dyslexic with

a prostate carcinoma and that these disabilities were heightened to an incapacitating

level by both the federal criminal prosecution against him and his pre-trial incarceration. 

Plaintiff alleges that during those criminal proceedings the United States Attorney’s

Office for the Middle District of Florida (“USAO”) intentionally participated in a

conspiracy to violate Plaintiff’s due process rights in connection with the insanity

hearing that was conducted in his criminal prosecution, refused to provide him with

documents and intentionally retaliated against Plaintiff for its failed prosecution. He

also alleges that during his pretrial detention the United States Marshals Service

(“USMS”) took legal papers from him and failed to ensure that court orders requiring

that Plaintiff receive medical attention were carried out. Plaintiff also contends that the

personnel at several Federal Bureau of Prisons (“FBOP”) facilities failed to give him

medication, placed him in lock-down isolation, did not allow him to exercise, and locked

him in cells with convicted criminals. He also brings a due process claim against the

Social Security Administration (“SSA”) for the garnishment of his disability benefits. 

The Court construes Plaintiff’s Complaint as bringing claims under the FTCA and

Bivens v. Six Unknown Agents, as these are the only two means by which a private

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individual may sue the United States without such a suit being barred by sovereign

immunity. Accordingly, the Court will review Plaintiff’s various claims under each of

those two avenues.

1. Standard of Review

Defendant United States contends that this Court lacks subject matter

jurisdiction over the claims against the United States in Plaintiff’s Complaint. (Doc. 1.) 

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure

challenging subject matter jurisdiction may be directed at two different types of defects. 

The first type is a “facial attack” which “requires the court merely to look to see if plaintiff

has sufficiently alleged a basis of subject matter jurisdiction.” Menchaca v. Chrysler

Credit Corp., 613 F.2d 507, 511 (5 Cir. 1980). A “factual attack,” on the other hand, th

“challenges the existence of subject matter jurisdiction in fact, irrespective of the

pleadings.” Id. Thus, where there is a factual attack, although the allegations of the

complaint are taken as true, the allegations may be tested by extraneous evidence. In

other words, “no presumptive truthfulness attaches to plaintiffs’ allegations and the

existence of disputed material facts will not preclude the trial court from evaluating for

itself the merits of jurisdictional claims.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29

(11 Cir. 1990)(per curiam). When the attack is facial the allegations of the complaint th

are taken as true for purposes of the motion. Menchaca, at 511. In this instance,

Defendant United States makes a factual attack, contending that Plaintiff’s FTCA

claims are barred for failure to administratively exhaust those claims, that Plaintiff

cannot bring Bivens claims against several federal agencies and that his one Bivens

claim against an individual federal official is time-barred. Accordingly, this Court can

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consider the exhibits that Defendant United States has filed in support of its motion, as

well as other extraneous evidence, in ruling on that motion.

2. Plaintiff’s Federal Tort Claims Act Claims

“It is elementary that ‘[t]he United States, as sovereign, is immune from suit save

as it consents to be sued . . ., and the terms of its consent to be sued in any court

define that court's jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S.

535, 538 (1980)(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Such

a waiver of sovereign immunity “cannot be implied but must be unequivocally

expressed.” United States v. King, 395 U.S. 1, 4 (1969). The FTCA creates a limited

waiver of that sovereign immunity by providing that the United States shall be liable for

certain torts “in the same manner and to the same extent as a private individual under

like circumstances.” 28 U.S.C. § 2674. 

Plaintiff purports to bring a number of claims against various federal agencies,1

including the USMS, SSA, the USAO and FBOP based on the “obstructions, torts, and

damages etc. caused the plaintiff by the United States of America, it’s [sic] employees,

agencies, administrations and contract service providers.” (Doc. 1.) Specifically,

Plaintiff contends that the USAO tortiously interfered with a prior lawsuit filed by Plaintiff

against the SSA and that the USAO caused Plaintiff to become totally disabled, unable

to work and poverty-stricken by means of its criminal prosecution against him. Plaintiff

also alleges that the USMS did not ensure that he was given his medications during his

FTCA claims can only be made against the United States. Simpson v. Holder, 184 Fed. Appx.

1

904, 908 (11 Cir. 2006)(per curiam)(“The United States is the only proper defendant in an FTCA action.”).

th

Plaintiff has properly named the United States as a Defendant to this lawsuit in his Complaint, and so the

Court construes all of Plaintiff’s FTCA claims as having been brought against Defendant United States.

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pre-trial incarceration and that various FBOP facilities refused to give him medicine or 2

medical care and locked him in cells with convicted criminals. Plaintiff lists, in his

response to the United States’s motion, under the heading “ACTS OF COMMISSION

AND OMISSION BY U.S.A. EMPLOYEES OR DESIGNATED REPRESENTATIVES 18

USC 2680,” a long list of torts that he claims were committed against him by federal 3

officials including: libel, slander, misrepresentation, deceit, strict liability, interference

with contractual rights and assault. (Doc. 27 pp. 9-10.) Because these claims are in

tort, the Court must determine whether Plaintiff may bring claims for these torts under

the FTCA against the United States.

A prerequisite to a plaintiff’s ability to maintain an FTCA suit in a federal court is

prior exhaustion of the plaintiff’s administrative remedies. Section 2675(a) of the FTCA

provides that a plaintiff cannot institute an FTCA claim against the United States

“unless the claimant shall have first presented the claim to the appropriate Federal

agency” along with a demand for money damages in a sum certain. 28 U.S.C. §

2675(a); 28 C.F.R. § 14.2(a). A plaintiff’s failure to file an administrative claim with the

applicable agency divests a federal court of subject matter jurisdiction over the plaintiff’s

FTCA claim. Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11 Cir. th

2008). The fact that a plaintiff is proceeding pro se does not excuse him from the

FTCA’s administrative exhaustion requirement. McNeil v. United States, 508 U.S. 106,

Plaintiff also includes three FBOP facilities as Defendants to this action. This Court construes

2

those claims as arising against the FBOP rather than against each individual facility.

As there is no 18 U.S.C. § 2680, the Court construes Plaintiff’s reference to that section of the

3

United States Code as an attempt to reference 28 U.S.C. § 2680, which is one of the FTCA’s statutory

provisions.

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113 (1993). 

To the extent that Plaintiff is attempting to bring FTCA claims against the United

States based on the torts he alleges were committed by various federal agencies and

their employees, Plaintiff’s claims fail because he has not exhausted his administrative

remedies under the FTCA, as required by statute. Plaintiff does not allege in his

Complaint nor has he filed any evidence demonstrating that he filed an administrative

claim with any federal agency. 

4

Instead, several of the federal agencies have provided affidavits demonstrating

that Plaintiff did not file an administrative claim prior to filing suit. The following

affidavits establish that there is no record of Plaintiff filing a presuit FTCA demand.

Elijah F. Jenkins, a paralegal with the United States Department of Justice, avers that

he searched that agency’s records system, which is used to track every FTCA claim

received by the agency, and found no record of an administrative claim filed by Plaintiff. 

(Doc. 12 Exh. H.) Gerald M. Auerbach, General Counsel of the USMS, attests that he

had searched his agency’s FTCA claim records system and could find no claim filed by

Plaintiff. (Doc. 12 Exh. I.) Vincent E. Shaw, Senior Litigation Counsel with the FBOP,

avers that both he and another FBOP staff member searched FBOP records of the

FTCA claims filed against the FBOP and that neither of them could find a single claim

Plaintiff included a letter styled as an “FTCA NOTICE FORM” as part of his response to

4

Defendant United States’s motion. Although Plaintiff apparently sent the letter to the agencies he has

named under the FTCA. (Doc. 27 p. 23) the letter is dated August 10, 2010, five months after this lawsuit

was filed. Because the letter was not sent before suit was filed it is insufficient to be considered a valid

FTCA notice. The letter also does not constitute a valid FTCA notice because the letter does not include a

demand for a sum certain, as required. 28 C.F.R. § 14.2(a). Instead, the letter merely states that Plaintiff

wishes to conduct discovery regarding unstated allegations and that Plaintiff can have a subpoena issued

by this Court. Consequently, the August 5, 2010 letter cannot be construed as a proper FTCA notice and

therefore does not demonstrate that Plaintiff exhausted his administrative remedies prior to filing suit.

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filed by Plaintiff. (Doc. 12 Exh. J.) Plaintiff has not filed any information rebutting this

clear record, which demonstrates that Plaintiff did not file, as required, a written FTCA

claim before suit was filed.

Because Plaintiff did not first pursue his administrative remedies with respect to

the FTCA claims that he seeks to advance in his Complaint, Plaintiff’s claims against

the United States and the various agencies of the United States are barred for failure to

exhaust administrative remedies under 28 U.S.C. § 2675(a). Accordingly, this Court

lacks subject matter jurisdiction over Plaintiff’s FTCA claims against the United States

and, therefore, Plaintiff’s claims against the United States and the various federal

agencies are due to be dismissed.

2. Plaintiff’s Bivens Claims

The only other avenue of relief for a plaintiff to pursue claims against federal

officers for a violation of the plaintiff’s constitutional rights is through a Bivens claim. In

Bivens v. Six Unknown Agents the Supreme Court recognized a cause of action against

a federal agent who, while acting under color of federal law, violates an individual’s

constitutional rights. 403 U.S. 388, 397 (1971). Bivens claims cannot, however, be

brought against the United States itself or against a federal agency, as Bivens is only a

vehicle for asserting claims against individual federal officials. Fed. Deposit Ins. Corp.

v. Meyer, 510 U.S. 471, 485-87 (1994). The Supreme Court reasoned that the very

purpose of Bivens was to “deter the officer” from violating rights and that this purpose

would be “eviscerat[ed]” if Bivens actions could be brought directly against an agency. 

Id. at 485.

Plaintiff’s Complaint alleges various violations of his constitutional rights by both

federal officials and federal agencies. Plaintiff asserts, for example, that the USAO

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violated his due process rights and continually and intentionally violated his

constitutional rights by not accepting service of process of a subpoena, participating in

an intentional plan designed not to give him due process in connection with his insanity

hearing and failing to notify him of hearings in his criminal prosecution. Plaintiff also

alleges that an unnamed female Deputy U.S. Marshal, who transported Plaintiff to the

Bradford County Jail, purportedly failed to convey to jail officials this Court’s order that

Plaintiff be given prompt medical attention and she allegedly took several of Plaintiff’s

legal papers. Plaintiff also alleges that the SSA violated his constitutional rights by not

giving him a due process notice that his disability benefits were to be garnished and by

taking his property without due process. Because each of these claims revolves around

purported violations of Plaintiff’s constitutional rights, the Court construes them as

Bivens claims.

A fundamental problem with the majority of Plaintiff’s claims for violation of his

constitutional rights is that Plaintiff seeks to hold federal agencies like the USAO, SSA

and USMS, responsible for these violations, rather than seeking to hold the individual

federal officials liable. The Supreme Court has expressly declined to extend Bivens to a

suit directly against an agency of the federal government. Fed. Deposit Ins. Corp. v.

Meyer, 10 U.S. 471, 487 (1994). Accordingly, because Plaintiff cannot maintain Bivens

claims against the USAO, SSA and USMS for violation of his constitutional rights,

Plaintiff’s claims against the named federal agencies are due to be dismissed.

The only mention by Plaintiff of a claim against an individual federal officer is

Plaintiff’s reference to unnamed female U.S. Deputy Marshall, who allegedly

transported Plaintiff to the Bradford County Jail and who allegedly did not convey to the

jail officials that this Court’s January 22, 2004 Order directed that Plaintiff should be

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given prompt medical attention. (Doc. 1.) Although there are a number of problems

with this claim the Court need not address whether these facts are sufficient to state a

claim, because even if Plaintiff could allege a viable claim against the Deputy U.S.

Marshal, Plaintiff cannot proceed with this claim because it is time-barred. Bivens

claims are governed by the same statute of limitations applicable to 42 U.S.C. § 1983

actions, that is, the forum state's applicable residual personal injury statute of

limitations. Kelly v. Senna, 87 F.3d 1235, 1239 (11th Cir. 1996); City of Hialeah, Fla. v.

Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002). In Florida, "a plaintiff must commence

a § 1983 claim arising in Florida within four years of the allegedly unconstitutional or

otherwise illegal act." Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.

1999). A cause of action accrues for purposes of the statute of limitations in § 1983

and Bivens cases when the plaintiff knows or has reason to know of his injury and who

has inflicted it. Eric v. Border Patrol of Florida State, 154 Fed. Apex. 193, 194 (11 Cir. th

2005)(per curiam). 

As affirmatively alleged by Plaintiff in his complaint, Plaintiff should have been

well aware in 2004 when he was taken to the Bradford County that he was not given the

medications he alleges should have been administered. (Doc. 1.) The complaint in this

case was filed in March 2010, more than six years after the events occurred about

which Plaintiff claims. Accordingly, to the extent that Plaintiff is seeking to bring a

Bivens claim against an unnamed female Deputy U.S. Marshal this claim is due to be

dismissed with prejudice.

4. Plaintiff’s Claims Against the Social Security Administration

Plaintiff’s Complaint also includes a claim against the SSA relating to the

garnishment of a portion of Plaintiff’s disability benefits by a New York governmental

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entity. Plaintiff previously filed a complaint against the SSA in the Middle District of

Florida in Case No. 8:09-CV-1898-JAW-AEP on September 16, 2009 challenging the

very same garnishment of his Social Security disability benefits. (Doc. 12 Exh. C.) In

that case, the SSA filed a motion to dismiss on the grounds that the court did not have

subject matter jurisdiction over Plaintiff’s claims against SSA. (Doc. 12 Exh. C.) The

district court, there, on March 5, 2010 entered an order granting SSA’s motion to

dismiss and dismissed Plaintiff’s claims against SSA for lack of subject matter

jurisdiction. (Doc. 12 Exh. E.) Plaintiff then filed the instant action in this Court eleven

days later on March 16, 2010. (Doc. 1.) Not to be deterred ten days later on March 26,

2010 Plaintiff file an amended complaint in the case in the Middle District of Florida.

The district court there again dismissed the claim against the SSA for lack of subject

matter jurisdiction on June 21, 2010. (Doc. 12 Exhs. F & G.)

For the reasons discussed in detail above, this Court does not have subject

matter jurisdiction over Plaintiff’s claim against the SSA because the SSA is an agency

of the United States and, therefore, can only be sued where the United States has

waived sovereign immunity. 

Furthermore, Plaintiff’s attempt again to bring the same claim against the SSA is

barred by res judicata because the identical claim has been fully adjudicated by another

court. Res judicata bars the filing of legal claims that were raised or could have been 5

raised in an earlier proceeding. Ragsdale v. Rubbermaid, 193 F.3d 1235, 1238 (11th

Cir. 1999). A claim is barred under res judicata if “(1) there is a final judgment on the

merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the

parties, or those in privity with them, are identical in both suits; and (4) the same cause

While technically final judgment has not been entered in the case in the Middle District of

5

Florida because other claims against other parties remain pending, the Court has entered a final order

dismissing the SSA as as a party in that case. (Doc. 12 Exhs. F & G.)

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of action is involved in both cases.” Id. at 1238. The claim in the Middle District of

Florida is identical to the claim brought in this case against the SSA and Plaintiff has

lost not once but twice on this same issue in the Middle District case. Accordingly,

Plaintiff’s claim against the SSA is due to be dismissed.

B. Motion To Dismiss Filed By Defendant FDPNY

Turning next to the Federal Public Defenders of New York, Inc.’s Motion To

Dismiss, FPDNY contends that Plaintiff’s Complaint should be dismissed for lack of

personal jurisdiction under Fed. R. Civ. P. 12(b)(2), insufficient process under

12(b)(2)(4) and insufficient service of process under 12(b)(2)(5). 

Plaintiff’s complaint is not altogether clear as to which Federal Public Defender

Plaintiff is suing, as his Complaint refers only to “Federal Defender’s Office” and then

refers to the actions of three separate federal public defenders in the Northern District

of Florida, Middle District of Florida and Southern District of New York. Nevertheless,

Plaintiff’s specific allegations in the Complaint against the actions of his Assistant

Federal Public Defender in the Southern District of New York are that his counsel there

should have filed a motion to change venue sooner. Plaintiff alleges that as a result of

the delay he unnecessarily spent two months incarcerated in New York, which in turn

allegedly forced him to waive his speedy trial rights in the Florida criminal proceedings.

Plaintiff’s complaint is, however, completely devoid of facts establishing a connection

between the two month period of incarceration and the actions of his New York federal

public defender.

1. Service of Process under Fed. R. Civ. P. 4

The starting point for service of process in the federal system is Rule 4 of the

Federal Rules of Civil Procedure. Rule 4 sets forth what documents must be served, the

proper means for doing so, and the time frame within which service must be made. 

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Rule 4 provides that “[a] summons must be served with a copy of the complaint” and

that “[t]he plaintiff is responsible for having the summons and complaint served within

the time allowed by Rule 4(m).” Under the Federal Rules, service of process on a

corporation like FPDNY can be made by (i) delivering a copy of the summons and the

complaint to an officer or agent authorized by appointment or by law to receive service

of process and by also mailing a copy of each to the defendant or (ii) pursuant to state

law in either the state where the district court is located or where service is made. FED.

R. CIV. P. 4(h)(1). In this case, Plaintiff would have to comply in with either Florida law

or New York law, since Florida is the state in which this Court is located and New York

is the state in which FPDNY is located. 

Florida law requires service of process on a corporation by serving a designated

list of corporate officers, in the absence of a corporate officer on a director, and in the

absence of a director on any agent transacting business for the corporation within the

state, or as an alternative to the foregoing on the corporation’s registered agent in

Florida. FLA. STAT. § 48.081. In New York, service of process on a corporation can be

made on any corporate officer, director, managing or general agent, or any other agent

authorized by appointment or by law to receive service or on the corporation’s

registered agent. N.Y. BUS. CORP. § 307. Service of process on a corporation in New

York can also be made via the mail, but only if a copy of the summons and complaint

are sent via first class mail along with two copies of a statement of service by mail, an

acknowledgment of receipt in a specific form as dictated by statute, and a postage

prepaid return envelope addressed to the sender. N.Y. C.P.L.R. § 312-a. A defendant

must be served within 120 days of the filing of the complaint, or else “the court–on

motion or on its own after notice to the plaintiff–must dismiss the action without

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prejudice against that defendant or order that service be made within a specified time.” 

FED. R. CIV. P. 4(m).

2. Personal Jurisdiction

In addition to effecting valid service of process under Rule 4 on a defendant, a

plaintiff must also establish a prima facie case that the Court has personal jurisdiction

over a nonresident defendant. “A prima facie case is established if the plaintiffs present

sufficient evidence to defeat a motion for a directed verdict.” Cable/Home

Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11 Cir. 1990) th

(quoting Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988)). The burden then

shifts to the defendant to file affidavits containing allegations that, if taken as true, show

that the defendant’s conduct does not make him or her amenable to service. Acquadro

v .Bergeron, 851 So.2d 665, 672 (Fla. 2003). Where a defendant submits such

affidavits, the burden traditionally shifts back to the plaintiff to produce evidence

supporting jurisdiction -- unless the affidavits contain only cursory assertions that the

defendant is not subject to jurisdiction. Meier ex rel. Meier v. Sun Intern. Hotels, Ltd.,

288 F.3d 1264, 1269 (11th Cir. 2002).

In determining whether the court has personal jurisdiction over a nonresident

defendant the court employs a two-part analysis. Horizon Aggressive Growth, L.P. v.

Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005). First, the court must

determine if jurisdiction can be obtained over the defendant under Florida’s long-arm

statute. Id. If so, the court must then decide whether the nonresident defendant has

sufficient “minimum contacts” with Florida to satisfy the constitutional requirements

under the Due Process Clause of the Fourteenth Amendment so that maintenance of

the suit “does not offend ‘traditional notions of fair play and substantial justice.’” Id.

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Because Florida law dictates the reach of the long-arm statute, this Court must

interpret it in the same way that the Florida Supreme Court would. Id. at 1167.

Therefore, this Court must strictly construe the statute. Madara v. Hall, 916 F.2d at

1514. Plaintiff also bears the burden of proving the facts which make the long arm

statute applicable to Defendant. Restorative Prods., Inc. v. Mmar Med. Group, Inc.,

No. 94-1920 CIV-T-17A, 1995 U.S. Dist. LEXIS 18695, at *5 (M.D. Fla. Oct. 18, 1995);

Bloom v. A. H. Pond Co., Inc., 519 F. Supp. 1162, 1168 (S.D. Fla. 1981).

Florida’s long-arm statute provides for two types of personal jurisdiction: specific

jurisdiction under § 48.193(1), where a party’s contacts with the forum relate to the

cause of action and general jurisdiction under § 48.193(2), where a party’s contacts are

unrelated to the litigation but, nonetheless, are “continuous and systematic,” such as

owning property, running a business, or maintaining a bank account. 

3. Application

In the first instance Plaintiff failed to perfect valid service of process on FPDNY

in accordance with Rule 4. Instead, the only effort made by Plaintiff to serve FPDNY

was to mail a packet to FPDNY on August 11, 2010 containing the OMB Approved

Form No. 1105-0008, a copy of the jury verdict form in Plaintiff’s criminal prosecution, 6

a letter from Plaintiff that noted he had included an FTCA notice form and that he

wanted to conduct discovery of the allegations related to the enclosed notice of FTCA

claims, and a six page document that FPDNY describes as “ a reproduction of the

Complaint but lacking a style and signature.” (Doc. 18.) In Plaintiff’s response to

FPDNY’s motion to dismiss Plaintiff concedes that the packet he mailed “by definition ...

was not a summons or complaint” and that his purpose in mailing the packet was to

This is a form that is used to place a governmental entity on notice of an FTCA claim against the

6

governmental entity.

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provide “the notice under FTCA..” (Doc. 28.)

Plaintiff’s claim against FPDNY should be dismissed under Fed. R. Civ. P.

12(b)(4) for insufficient process and for invalid service of process under Rule 12(b)(5). 

Although pro se plaintiffs are entitled to liberal construction of their pleadings, “a

plaintiff’s pro se status will not excuse mistakes regarding procedural rules.” Redmon v.

Lake County Sheriff’s Office, No. 10-11070, 2011 WL 476601, at *4 (11 Cir. Feb. 10, th

2011)(per curiam); see also Asad v. Crosby, 158 Fed. Apex. 166, 171 n.4 (11th Cir.

2005)(per curiam)(a party’s pro se status does not excuse a party’s failure to comply

with the strictures of Rule 4). In addition, this Court provided Plaintiff with a courtesy

copy of Rule 4 and specifically instructed Plaintiff as to how to serve his complaint and

that personal service requires delivering to each Defendant a copy of the Complaint as

well as a summons. (Doc. 4.) Furthermore, apparently Plaintiff is a licensed attorney in

the state of New York and therefore should have understood that effecting valid service

of process was essential to proceed with a case in federal court.

Plaintiff admitted in his response to FPDNY’s motion to dismiss that he did not

include either a copy of the Complaint or a summons in the packet that he mailed to

FPDNY. (Doc. 28.) And although Plaintiff mailed the packet, that method is not

appropriate method of service under Rule 4(c) or under New York or Florida law

pursuant to 4(e)(1) and 4(h)(1)(A), because FPDNY did not affirmatively choose to

accept service by mail in the means prescribed by New York law. Lastly, Plaintiff also

failed to serve FPDNY within 120 days of the filing of his Complaint pursuant to Fed. R.

Civ. P. 4(m). 

Accordingly, for all of these reasons, Plaintiff’s complaint against FPDNY should

be dismissed under 12(b)(4) for insufficient process and under 12(b)(5) for insufficient

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service of process. 

Because Plaintiff failed to perfect valid service of process under Rule 4 upon

FPDNY, this Court lacks personal jurisdiction over FPDNY. See In re Worldwide Web

Systems, Inc., 328 F.3d 1291, 1299 (11th Cir. 2008)(noting that “[g]enerally, where

service of process is insufficient, the court has no power to render judgment”). 

Extending the time within which to allow Plaintiff to perfect service on FPDNY – as the

Court is permitted to do under Rule 4(m) – would be futile because as discussed below

this Court does not have personal jurisdiction over FPDNY under Florida’s long-arm

statute and because FPDNY has insufficient minimum contacts to be subjected to suit

in Florida.

There are two fundamental reasons the Court does not have personal

jurisdiction over FPDNY. First, Plaintiff fails to allege in the Complaint any facts

suggesting that the FPDNY is subject to personal jurisdiction or even mention Florida’s

long-arm statute. Thus, based upon a facial challenge to personal jurisdiction Plaintiff

has failed to plead a sufficient factual basis to support personal jurisdiction.

Secondly, in addition to the complete absence of any facts in the complaint

suggesting a basis for personal jurisdiction, as a matter of evidence FPDNY has

demonstrated in the affidavits it filed – which Plaintiff has not rebutted – that it is not

subject to personal jurisdiction in Florida. In support of its motion to dismiss, FPDNY

filed affidavits from Martin Smith, Administrative Officer of FPDNY, and Paul Davison,

Plaintiff’s federal public defender in the limited proceedings that took place in the

Southern District of New York. (Docs. 18 & 19.) Smith attests that FPDNY is a foreign

corporation that carries on no activities whatsoever in Florida, is not registered to do

business in Florida, and was not even formed as a corporate entity when Plaintiff’s

Case No: 1:10-cv-00038-SPM-GRJ
Page 18 of 20

limited criminal proceedings in the Southern District of New York took place. (Doc. 18.) 

Smith also notes that Davison served as Plaintiff’s counsel when he was employed by

an entity other than FPDNY, the Federal Defender Division of the Legal Aid Society of

New York, which Davison confirms. (Docs. 18 & 19.) Davison notes that his

representation of Plaintiff took place exclusively in the Southern District of New York,

that he did not provide any legal services to Plaintiff in Florida, and that he did not

advise, counsel or represent Plaintiff after Plaintiff’s criminal prosecution was

transferred to the Middle District of Florida. (Doc. 19.) FPDNY is a foreign corporation

with no connection to nor any contacts with Florida, either with respect to this action or

in any other respect. Thus, the activities of FPDNY do not fall under provision of

Florida’s long-arm statute and are woefully insufficient to establish that FPDNY has

sufficient minimum contacts with Florida to be subject to personal jurisdiction.

 Accordingly, Plaintiff’s complaint against FPDNY is due to dismissed with

prejudice pursuant to Rule 12(b)(4) for insufficient process, pursuant to Rule 12(b)(5)

for insufficient service of process and pursuant to Rule 12(b)(2) for lack of personal

jurisdiction.

C. Plaintiff’s Claims Against The Remaining Defendants

Lastly, Plaintiff also purports to bring claims against seven state jails in which he

was detained prior to his criminal trial. Six of the state jails are in Florida: Taylor 7

County Jail, Citrus County Jail, Alachua County Jail, Bradford County Jail, Columbia

County Jail, and the Hillsborough County Sheriff’s Office Orient Road Jail. The seventh

jail is the Westchester County Jail in Valhalla, New York. Plaintiff alleges that each of

A jail is not normally a proper defendant because it is not a juridical entity and instead is

7

operated usually by a governmental entity such as a county. As such, the named jails are not proper

parties to this suit. This defect, however, makes no difference because Plaintiff has not made any effort to

serve process with regard to these entities.

Case No: 1:10-cv-00038-SPM-GRJ
Page 19 of 20

these jails refused to provide him with medicine, failed to provide medical care or

provided inadequate medical care, failed to provide him with sufficient exercise time,

and placed him in a cell with convicted prisoners. While the allegations regarding the

jails are sparse and fail to provide the specifics of his claims, the Court need not waste

its scarce and valuable resources explaining to Plaintiff the shortcomings of these

claims, because Plaintiff has made no effort to serve any of these seven facilities with a

summons or a copy of the Complaint and has not requested that the Court extend the

time within which Plaintiff must serve each of these Defendants under Fed. R. Civ. P.

4(m) beyond 120 days. 

Accordingly, because Plaintiff has not made any effort to advance these claims

and has not served these defendants the claims against each of these seven remaining

Defendants should be dismissed for failure to serve process on each Defendant within

120 days of the filing of the complaint as required by Rule 4(m).

III. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that: 

(1) Defendant United States of America’s Motion to Dismiss or in the Alternative

for Summary Judgment (Doc. 12) should be GRANTED and the claims against the

United States and the claims against the United States Attorney for the Middle District

of Florida, the Social Security Administration, the Federal Bureau of Prisons, and the

8

United States Marshals Service should be DISMISSED; and

 (2) Federal Defenders of New York Inc.’s Motion to Dismiss (Doc. 17) should 

be GRANTED and the claims against Federal Public Defenders of New York, Inc.

This includes the Federal Transfer Center at Oklahoma City, the Federal Correctional Institute in

8

Butner, North Carolina, and the United States Penitentiary in Atlanta, Georgia, each of which is included

as an individual Defendant by Plaintiff.

Case No: 1:10-cv-00038-SPM-GRJ
Page 20 of 20

should be DISMISSED; and

(3) All claims against Defendants Taylor County Jail, Citrus County Jail,

Alachua County Jail, Bradford County Jail, Columbia County Jail, the Hillsborough

County Sheriff’s Office Orient Road Jail and the Westchester County Jail in Valhalla,

New York should be DISMISSED for failure to perfect service of process within 120

days pursuant to Fed. R. Civ. P. 4(m).; and

(4) The court should direct the clerk to enter final judgment against Plaintiff on

all claims and close the file.

At Gainesville, Florida, this 29th day of March, 2011.

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

Case No: 1:10-cv-00038-SPM-GRJ