UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John Edward Schomaker

v. Civil No. 07-cv-164-PB

United States of America, et al.

O R D E R

John Schomkaer has filed a complaint against the United

States of America, Assistant United States Attorney Arnold H.

Huftalen, and John Doe property officers employed by the United

States Attorney’s Office for the District of New Hampshire

(“USAO”). Schomaker alleges various federal statutory and

constitutional claims, as well as state law claims, arising out

of the destruction of Schomaker’s property by the USAO. 

Specifically, Schomaker alleges claims under the Federal Tort

Claims Act, 28 U.S.C.A. §§ 2671 et seq. (“FTCA”), New Hampshire

state law, and the Fourth, Fifth, and Fourteenth Amendments to

the United States Constitution (document 1). As Schomaker is a

prisoner proceeding pro se, the complaint is before me for

preliminary review to determine, among other things, whether he

has stated any claim upon which relief may be granted. See

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1Plaintiff has filed an objection (document no. 3) to the

complaint in this matter being preliminarily reviewed, as is

required by this Court’s Local Rules. Plaintiff claims that

because he has paid his filing fee, his complaint should not be

subject to preliminary review merely on the basis that he is

incarcerated. Plaintiff seeks to raise a constitutional

challenge to this Court’s local rules, at least as they are

applied to his complaint. The Local Rules in this matter,

however, merely serve to provide the procedure by which this

Court complies with it’s statutory obligation to preliminarily

screen prisoner complaints under 28 U.S.C. § 1915A(a), which

states that “The court shall review, before docketing, if

feasible or, in any event, as soon as practicable after

docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or employee

of a governmental entity.” The statute does not limit its

directive to in forma pauperis cases and provides no exceptions

for prisoners who pay the filing fee. Accordingly, the

plaintiff’s motion objecting to preliminary review is denied.

2

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(2)(A); 28 U.S.C. § 1915A(b).1

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

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pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and an unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

On February 18, 1998, Schomaker was convicted in the federal

district court on charges involving the possession of child

pornography. During the preparation of the criminal prosecution

against him, computer equipment and software were seized from

Schomaker. Schomaker states that while the property was seized

from him in New York, it was held at the USAO in Concord, New

Hampshire, where the criminal charges were brought. On July 9,

1998, after he began serving his prison sentence, Schomaker

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2Schomaker executed a written authorization for the release

of the property to his parents which was delivered to the USAO

shortly after Schomaker’s sentence commenced.

3On October 31, 2006, Schomaker filed a request with the

Executive Office of the USAO, pursuant to the Freedom of

4

requested that his personal property be returned.2 Schomaker’s

request included all of the property seized from him which, he

alleges, was not going to be used as evidence and was not subject

to forfeiture. 

Schomaker claims that despite repeated attempts by both

himself and his parents between July of 1998 and April of 2006,

the property was never returned to him, and he never learned the

precise condition or location of the property, or the name of the

person or persons responsible for maintaining and returning his

property. Much of the time, Schomaker states, he received no

response at all to his requests. 

On December 15, 2005, Schomaker petitioned the Court for a

return of his property during proceedings related to a 28 U.S.C.

§ 2255 petition that he had filed. On April 26, 2006, Assistant

United States Attorney Arnold Huftalen objected to the motion to

return property on the grounds that the property could not been

found, as it had apparently been inadvertently destroyed during

an office move.3 On May 9, 2006, the Court denied Schomaker’s

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Information Act, 5 U.S.C. § 551, et seq., for any records

relating to his property. On March 29, 2007, Schomaker received

a letter indicating that his property “may have been destroyed in

a fire.” On April 27, 2007, he received another letter

indicating that the information regarding the fire was incorrect,

but confirming that the records had in fact been destroyed.

5

motion without prejudice to the refiling of the claim in an

action brought pursuant to the FTCA.

On May 15, 2006, Schomaker filed a claim with the Department

of Justice’s Tort Claims Division (“TCD”) seeking compensation in

the amount of $26,725 for the destroyed property. Schomaker

subsequently amended his claim on June 6, 2006, October 17, 2006,

November 11, 2006, and December 11, 2006, alleging a claim for

$34,085. Schomaker states that, although he had not yet received

a response at the time he filed his complaint here, the TCD

denied his claim on August 7, 2007, on the basis that Schomaker’s

claim failed to comply with the two year statute of limitations

for filing a claim with that office. 

Discussion

I. Federal Tort Claims Act

A claim against a federal employee alleging liability on the

basis of the commission of a tort is cognizable under the FTCA:

The Federal Tort Claims Act (FTCA) waives the 

federal government’s sovereign immunity for civil 

suits seeking money damages for injury or loss of 

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property, or personal injury or death caused by 

the negligent or wrongful act or omission of any 

employee of the Government while acting within the 

scope of his office or employment, under 

circumstances where the United States, if a 

private person, would be liable to the claimant in 

accordance with the law of the place where the act 

or omission occurred.

Dolan v. U.S. Postal Serv., 546 U.S. 481, 492-93 (2006) (citing

28 U.S.C. § 1346(b)(1); see McCloskey v. Mueller, 446 F.3d 262,

265 (1st Cir. 2006) (FTCA grants federal courts jurisdiction over

claims against the United States for loss of property caused by

the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or

employment). This statutory waiver of immunity is limited to

situations where the governmental action challenged involved does

not involve the exercise of discretion. See Abreu v. United

States, 468 F.3d 20, 23 (1st cir. 2006). Liability for claims

brought under the FTCA is further limited to those claims that

are first “presented in writing to the appropriate Federal agency

within two years after such claim accrues.” Patterson v. United

States, 451 F.3d 268, 270 (1st Cir. 2006) (citing 28 U.S.C. §

2401(b). Accrual of an FTCA claim, for purposes of determining

the commencement of the statutory limitations period, occurs when 

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4The FTCA remedy excludes any other civil action or

proceeding for money damages based upon the same subject matter

that serves as the basis of the FTCA suit. See United States v.

Smith, 499 U.S. 160, 163 (1991) (citing 28 U.S.C. § 2679(b)(1)). 

Because plaintiff here has alleged alternate or additional

theories of recovery, it is not appropriate, at this juncture,

for the Court to determine whether the presence of the FTCA claim

precludes the other claims alleged in the complaint. 

5Schomaker baldly alleges that the defendants in this case

engaged in a number of malicious or intentional acts, such as

fraudulent conversion or theft of the property in question. 

Schomaker has alleged no facts that support accusations of

intentional wrongdoing. The only facts alleged regarding the

actual disposition of the property indicate that the defendants

failed to locate and produce the property upon request because

the property had been inadvertently destroyed. Accordingly, I

will not consider Schomaker’s entirely unsupported claims of

intentional destruction or wrongdoing.

7

the plaintiff knew or reasonably should have known that he was

injured and the cause of his injury. Id. (citations omitted).4 

Here, plaintiff has alleged that defendants had a mandatory,

nondiscretionary duty to retain his personal property, and to

return it to him, or his authorized agent, upon request. 

Plaintiff claims that the defendants failed to meet that

obligation and that, as a result, his property was tortiously

destroyed, resulting in pecuniary loss.5 

Plaintiff has also alleged that, within weeks of being

advised that his property had been destroyed, he filed an

administrative claim with the appropriate agency, seeking

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recompense for his loss. Although the claim was denied as

untimely, it appears that plaintiff did file promptly upon

learning that his property had been destroyed and could not be

returned to him. While the property may have been destroyed more

than two years prior to the filing of the administrative claim,

Schomaker had no way of knowing the disposition of the property

until May of 2006. Schomaker, through his parents, made diligent

attempts to obtain the property and were told that the USAO was

trying to locate the property. For purposes of preliminary

review, Schomaker has alleged that his administrative claim was

timely filed. 

Schomaker also alleges that his action here was filed

initially in May 2006 and June 2006, and that the agency had six

months in which to respond. Receiving no response in that time

frame, Schomaker appropriately filed here within six months of

the TCD’s failure to respond. Schomaker did, however, receive a

response - a denial of his claim - after his action was filed

here. I find, therefore, that Schomaker has adequately

demonstrated exhaustion of his administrative remedies to proceed

on his FTCA claims in this Court. 

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Because I find that Schomaker has stated an FTCA claim upon

which relief might be granted, I will direct that the FTCA claims

be served on defendant United States of America. I recommend

that the defendants named individually be dismissed from this

action, as the United States is the only proper defendant to an

FTCA action alleging a loss of property. See McCloskey, 446 F.3d

at 266 (citing 28 U.S.C. § 1346(b), 2674 & 2679 and Roman v.

Townsend, 224 F.3d 24, 27 (1st Cir. 2000)). Schomaker has also

named Huftalen and the John Doe defendants to this claim in their

official capacities. Actions brought against federal employees

in their official capacities are actions against the United

States. Accordingly, I will construe the official capacity FTCA

claims against Huftalen and the John Doe defendants as

encompassed by Schomaker’s suit against the United States. See

28 U.S.C. § 2679; Hawaii v. Gordon, 373 U.S. 57, 58 (1963).

II. Constitutional Claims

Plaintiff may seek redress from federal government officials

who have violated his federal constitutional rights under Bivens

v. Six Unknown Fed. Narcotics Agents, 403 U.S. 338 (1971), which

creates a cause of action against federal officers who, acting in

their individual capacities, are alleged to have committed

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constitutional violations. Bivens held that an individual who

suffered a Fourth Amendment violation by federal officers could

maintain a claim for damages. Id., see Wilkie v. Robbins, ___

U.S. ___, 127 S.Ct. 2588, 2597 (2007). Since the Bivens

decision, the Supreme Court has recognized two additional

nonstatutory damage remedies for constitutional violations by

federal officers: employment discrimination in violation of the

Fifth Amendment’s Due Process Clause in Davis v. Passman, 442

U.S. 228, 241 (1979), and Eighth Amendment violations against

federal prison officials, in Carlson v. Green, 446 U.S. 14, 23

(1980). In Carlson, the Court cautioned that a Bivens action in

a particular case may be defeated, however, where defendants

demonstrate that special factors exist “counseling hesitation in

the absence of affirmative action by Congress,” 446 U.S. at 18,

and where “defendants show that Congress has provided an

alternative remedy which it explicitly declared to be a

substitute for recovery directly under the Constitution and

viewed as equally effective.” Id. at 18-19 (citations omitted). 

Schomaker alleges that the individual federal officers named

as defendants to this action have violated his constitutional

rights by failing to return his property to him upon request, and

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by destroying his property without due process. To the extent

that Schomaker intends to bring this action against Huftalen, the

USAO employee most directly responsible for the disposition of

the property in question here, and the John Doe property

officer(s), he can do so under Bivens if he alleges that these

individuals engaged in actions that violated his constitutional

rights. See FDIC v. Meyer, 510 U.S. 471, 473 (1994) (Bivens

decision implied cause of action for damages against federal

agents who violated the Constitution). At this point in the

litigation, I make no comment or judgment as to whether or not

defendants will be able to demonstrate that a Bivens action

should not be recognized under the circumstances presented in the

complaint. I address the violations alleged in turn.

 A. Fifth Amendment Due Process Claim

Schomaker alleges that he was deprived of his property

without due process of law and that the defendants, therefore,

have violated his constitutional rights. The Supreme Court has

held that, although the availability of a Bivens action is

limited, such an action may lie where a claim for money damages

is alleged against federal officers who abuse their

constitutional authority and thereby deny a person their Fifth

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Amendment due process rights. See Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 67-68 (2002) (explaining that while the Supreme

Court has consistently refused to extend Bivens liability to any

new context or category of defendants, the Court did recognize an

implied damages remedy under the Due Process Clause of the Fifth

Amendment); Davis, 442 U.S. at 235 (holding of Bivens extended to

recognize cause of action and damages remedy under the

Constitution when the Due Process Clause of the Fifth Amendment

is violated). 

Schomaker alleges that he was deprived of his personal

property by government agents Huftalen and one or more John Doe

property officers, in their individual capacities, when they

failed to protect his property from destruction and failed to

provide him with any pre-deprivation process. While the

circumstances surrounding the destruction of Schomaker’s property

are not, at this stage of the litigation, fully fleshed out,

Schomaker has alleged sufficient minimal facts to state a Fifth

Amendment due process claim under Bivens, and I will direct that

this action proceed against Huftalen, the prosecutor responsible

for the criminal case against Schomaker and thus ultimately 

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6Schomaker has indicated that he is aware that the property

officers must be named in order to be served, and that he will be

able to obtain the names of the responsible property officers in

discovery. Once Schomaker identifies the individual property

officers he wishes to serve, he must properly move to amend his

complaint to notify the Court of their names, and request that

those individuals be served with this action. Upon service of

this action on the named defendants, Schomaker can serve the

named defendants with interrogatories to obtain the full names of

the presently unnamed defendant(s) pursuant to Fed. R. Civ. P.

33(a) which states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party. 

13

responsible for the disposition of property in this matter, and

the John Doe property officer(s).6

B. Fourth Amendment Unreasonable Seizure

A damages action arises under the Constitution when Fourth

Amendment rights are violated. Bivens, 403 U.S. at 392. 

Schomaker alleges that the retention or destruction of his

property after the date of his conviction constituted an

unreasonable seizure prohibited by the Fourth Amendment, which

protects “[t]he right of the people to be secure in their

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persons, houses, papers, and effects, against unreasonable

searches and seizures, . . .” U.S. Const. amend. IV. 

Accordingly, without comment on the merits of the claim, I find

that Schomaker has alleged the minimum facts necessary to state a

Bivens claim against Huftalen and the John Doe property

officer(s) for a violation of the Fourth Amendment, to allow this

claim to proceed against them.

III. Pendant Jurisdiction - State Law Claims

Schomaker claims that in addition to FTCA and Bivens claims

stated, the circumstances of this case give rise to claims

arising under state tort law. I have already found that

Schomaker has alleged sufficient facts to invoke the original

federal question jurisdiction of this Court pursuant to 28 U.S.C.

§ 1331, which provides this Court with jurisdiction to resolve a

question arising out of federal law. I will also exercise this

Court’s pendant jurisdiction over the claims based on state tort

law, as I find that those claims, arising out of the same facts

and transactions as the federal claims, form part of the same

case or controversy as the federal claims. See 28 U.S.C. §

1367(a) (allowing court to exercise supplemental jurisdiction

over state law claims that are “so related to the claims in the

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7Again, although Schomaker has alleged state tort claims

based on both negligent and willful behavior, he has only

supported his negligence claims with factual allegations. 

Accordingly, only those state tort claims alleging negligence or

recklessness will be considered as properly alleged claims in

this action.

15

action within the original jurisdiction that they form part of

the same case or controversy); see also United Mine Workers v.

Gibbs, 383 U.S. 715, 725 (1966). I will therefore direct the

state law claims to be served on the defendants to this action.7

Conclusion

Without commenting on the merits of the complaint, I find

that plaintiff has stated claims upon which relief may be

granted. Accordingly, I order the Clerk’s office to issue the

necessary summons forms and forward them to plaintiff for service

upon defendants. 

Plaintiff must effect service by sending the summonses and

copies of the complaint (document no. 1), and this Order, to (i)

the United States Attorney for the District of New Hampshire,

(ii) the Attorney General of the United States, and (iii) the

United States Department of Justice, by certified mail, return

receipt requested. See Fed. R. Civ. P. 4(c)(1) and 4(i).

As to the individual defendant named, Assistant United

States Attorney Arnold Huftalen, plaintiff must serve him by

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delivering a copy of the summons and complaint to him personally

or by leaving copies of the summons and complaint at his dwelling

or abode. See Fed. R. Civ. P. 4(e) & 4(i)(2)(B). 

Defendants are instructed to answer or otherwise plead

within sixty days of service. See Fed. R. Civ. P. 12(a)(3). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 29, 2007

cc: John Edward Schomaker, pro se

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