The opinion of the court was delivered by: HOGAN
Thomas F. Hogan United States District Judge.
Plaintiff, a prisoner proceeding pro se, is suing the Clerk of the United States Supreme Court and an Assistant Clerk. The Clerk's Office returned plaintiff's petition for common law writ of certiorari or writ of mandamus as not conforming to Supreme Court rules. He seeks damages for deprivation of his constitutional right of access to the courts. Because plaintiff's access to the courts was not denied but merely conditioned on compliance with the rules, the Court shall dismiss the complaint for failing to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).
Glenn L. Spradley is incarcerated at the Marion Correctional Institution in Lowell, Florida. He has filed at least nine lawsuits in the United States District Court for the Middle District of Florida since 1983. In one of those cases, the United States Court of Appeals for the Eleventh Circuit on August 6, 1986, denied a motion for leave to proceed in forma pauperis and subsequently dismissed his appeal. As a result, Spradley on October 23, 1986, mailed to the United States Supreme Court various papers including one styled "petition for common law writ of certiorari or writ of mandamus to court of Appeals for the Eleventh Circuit." On October 28, 1986, Assistant Clerk Sandra Elliott Spagnolo returned Spradley's papers, giving the following reasons:
The affidavit of indigency must be notarized. See Rule 46.
You may not file a petition for common law writ of certiorari or writ of mandamus; please indicate which one you wish to file.
On November 2, 1986, Spradley resubmitted the papers, complying with Spagnolo's first instruction but ignoring the second. On November 7, 1986, Spagnolo returned the papers again, stating that the Rules of the Supreme Court made no provision for the filing of a petition for common law writ of certiorari or writ of mandamus. Again, Spradley was asked to indicate whether he wished to file for a common law writ of certiorari or a writ of mandamus, and to resubmit the papers.
On April 15, 1987, Spradley filed this action against Spagnolo and Supreme Court Clerk Joseph F. Spaniol, Jr. He claimed violation of his constitutional right of access to the courts and denial of equal protection; Spagnolo was alleged to have "impeded the timely filing of plaintiff's papers and defeated or prejudiced his rights in federal court" and Spaniol to have "failed to properly train and supervise defendant Spagnolo." Both were sued in their individual and official capacities. Spradley sought $ 10,000 in compensatory damages and $ 2,000 in punitive damages from each defendant.
On April 27, 1987, this Court dismissed Spradley's complaint sua sponte as frivolous under 28 U.S.C. § 1915(d). On December 8, 1987, the United States Court of Appeals for the District of Columbia Circuit reversed, holding that plaintiff had "arguably stated a claim with a basis in law or fact," and remanded the case for responsive pleading.
On February 24, 1987, the defendants moved to dismiss the complaint with prejudice for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). Defendants also asserted that they are immune from plaintiff's claims. On March 8, 1988, plaintiff filed an opposition to the motion to dismiss.
In ruling on a motion to dismiss, courts are obliged to treat the allegations of the complaint as true and may not dismiss for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted). However, "[a] court must dismiss a complaint where, even assuming all the factual allegations are true, the plaintiff has failed to establish a right to relief based upon those facts." Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 547 (D.C. Cir. 1985).
Plaintiff is suing defendants in their official and individual capacities. It is clear that he has failed to state a claim for damages against them in their official capacities. A claim against the defendants in their official capacities is a claim against the United States, cognizable, if at all, only under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 (1982). See Borntrager v. Stevas, 772 F.2d 419, 421 (8th Cir.), cert. denied, 474 U.S. 1008, 88 L. Ed. 2d 464, 106 S. Ct. 533 (1985). Under the FTCA, suit may not be instituted until a claimant has presented his claim to the appropriate federal agency and that agency has denied it or failed to act within six months. This requirement is jurisdictional in nature and cannot be waived. E.g., House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.), cert. denied, 439 U.S. 862, 99 S. Ct. 182, 58 L. Ed. 2d 171 (1978). The damages action against Spaniol and Spagnolo in their official ...