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Ojo v. U.S.

'Heck', Sovereign Immunity Bar Inmate's Claims Over Settlement, Restitution Offset

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MEMORANDUM & ORDER Plaintiff Olukayode David Ojo, proceeding pro se and currently incarcerated at Buffalo Federal Detention Facility, commenced the above-captioned action on October 8, 2020 against the United States of America, the United States Department of Justice, Richard P. Donoghue, and Beth P. Schwartz under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Federal Tort Claims Act, 28 U.S.C. §1346 et seq. (the “FTCA”), and the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (the “FDCPA”). (Compl., Docket Entry No. 1.) Plaintiff asserts that his restitution debt from a criminal case was wrongfully referred to the Treasury Offset Program (“TOP”), without notice and in the incorrect amount, and that his settlement and tax refunds were garnished under the TOP. (Id.

41-48.) The Court grants Plaintiff’s application to proceed in forma pauperis (“IFP”) for the purposes of this Memorandum and Order. (Mot. for IFP, Docket Entry No. 2.) For the reasons set forth below, the Court dismisses the action against Donoghue, Schwartz, and the United States Department of Justice. The action may proceed against the United States. I. Background Plaintiff was arrested on July 11, 2011, pursuant to a traffic stop, and after agents from the Federal Bureau of Investigation searched his car, the United States criminally charged and ultimately convicted him of attempted conspiracy to commit wire fraud pursuant to 18 U.S.C. §§1349 and 1343 and conspiracy to possess with intent to unlawfully use five or more false identification documents pursuant to 18 U.S.C. §§1028(f), (b)(2)(B), (c)(3)(A), (c)(3)(B), and (a)(3). (Compl.

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