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Dye v. United States Government

United States District Court, N.D. California

February 28, 2018

JAMES L. DYE, Plaintiff,



         On November 30, 2016, Plaintiff James L. Dye filed this Federal Torts Claim Act ("FTCA") case against the United States, asserting that Plaintiff suffered an injury when he slipped and fell in the Ronald V. Dellums Federal Building on January 8, 2010. (Compl. at 4, Dkt. No. 1.)

         On October 27, 2017, Defendant moved to dismiss the case based on: (1) Plaintiff's failure to timely exhaust administrative remedies, (2) the FTCA's independent contractor exception, and (3) the discretionary function exception. (Def.'s Mot. to Dismiss at 1, Dkt. No. 15.) Upon consideration of the parties' filings, as well as the arguments presented at the January 18, 2018 hearing, and for the reasons set forth below, Defendants' motion to dismiss is GRANTED.

         I. BACKGROUND

         In his complaint, Plaintiff alleges that on January 8, 2010, he entered the Ronald V. Dellums Federal Building. (Compl. at 4.) Due to rain, the marble floors were wet, and janitors had put down rugs but left a three- to four-foot gap between the doorway and the edge of the rugs. (Id.) Plaintiff alleges that the gap was not visible, and that when he turned left, he slipped and went down on his knees before landing on his back. Plaintiff injured his back, knees, head, and ankle, and was knocked unconscious. When he regained consciousness, a security officer was standing over him, asking if he was alright. The security officer helped Plaintiff off the floor, without checking for injuries, sat Plaintiff down on a bench, and called for an ambulance. (Id.)

         In a declaration in support of Plaintiff's opposition, Plaintiff states that it took him approximately 90 days after the incident to recover and begin the process of filing a claim. (Dye Decl. ¶ 3, Dkt. No. 21.) Plaintiff first focused on trying to obtain legal assistance, but was unable to find willing counsel. (Dye Decl. ¶ 4.) Plaintiff then began calling government agencies, who told him to contact other agencies. (Dye Decl. ¶ 5.) Plaintiff also visited local offices, but was unable to get accurate information on how to file a claim. On May 12, 2010, Plaintiff called the Federal Dispatch Service, and spoke with Officer Wilson, who referred Plaintiff to Commander McHugh. (Dye Decl. ¶ 6.)

         On May 14, 2010, Plaintiff spoke to Commander McHugh, who suggested that Plaintiff contact U.S. Immigration and Customs Enforcement ("ICE") to make a Freedom of Information Act ("FOIA") request for the guard report on the January 8, 2010 event. (Dye Decl. ¶ 7.) Plaintiff was able to make contact with an ICE representative in June 2010, and received a letter on June 17 which explained how to obtain the guard report. (Dye Decl. ¶ 8.) In late June or early 2010, Plaintiff contacted the Department of Homeland Security ("DHS") National Protection and Programs Directorate ("NPPD"), seeking a FOIA request form. (Dye Decl. ¶ 9.) Plaintiff never received a form, and in October 2010, reached out to an ICE specialist who assisted him in obtaining the FOIA request form. (Dye Decl. ¶ 10.)

         On October 28, 2010, Plaintiff submitted the FOIA request. On November 4, 2010, a DHS representative acknowledged receipt of the FOIA request. (Dye Decl. ¶ 11.) On November 11, 2010, Plaintiff spoke to someone at DHS about obtaining a claim form, and was referred to the Los Angeles Branch. (Dye Decl. ¶ 12.) On December 16, 2010, Plaintiff received the guard report regarding the January 8, 2010 event, but was still not able to get the claim form, despite making several additional calls. (Dye Decl. ¶ 13.)

         Around this time, Plaintiff's domestic partner became terminal. (Dye Decl. ¶ 14.) Plaintiff was responsible for her day-to-day care, and states that he was unable to deal with the claim for the next six months.

         In May 2011[1], Plaintiff again attempted to obtain legal counsel, to no avail. (Dye Decl. ¶ 15.) At an unknown point, Plaintiff called DHS to obtain the claim form. (Dye Decl. ¶ 16.) Plaintiff asserts that he spoke with Frank S. Levi, an attorney advisor for the Federal Protective Service, who cautioned him about the statute of limitations and encouraged him to file quickly. (Dye Decl. ¶ 16; Levi Decl. ¶ 1, Dkt. No. 15-3.) Mr. Levi gave Plaintiff the form and instructed him to fax it immediately. (Dye Decl. ¶ 16.) Plaintiff states that he faxed the form on January 5, 2012, and assumed that it was being submitted to the right agency as Mr. Levi had requested that it be sent directly back to him.

         Mr. Levi, in turn, states that he has no recollection of communicating with Plaintiff, nor does he have any file or record of any such communication. (Supp. Levi Decl. ¶ 2, Dkt. No. 22-1.) Mr. Levi states that when informed by an individual that they have a potential claim, it is his custom and practice to tell them to submit a claim by e-mail. (Supp. Levi Decl. ¶ 3.) Mr. Levi asserts that he does not usually tell people to submit claims by fax because e-mail is private and more reliable. Mr. Levi also states that he has a custom and practice of sending claimants a written acknowledgment and receipt of claim. (Supp. Levi Decl. ¶ 4.) Additionally, Mr. Levi asserts that he has occasionally received inquiries about slip and fall incidents in federal facilities, and it is his custom and practice to refer such individuals to the General Services Administration ("GSA") because that is the agency with potential liability. (Supp. Levi Decl. ¶ 5.)

         In addition to describing his custom and practice, Mr. Levi states that he has searched through his records, and found no e-mail records or acknowledgments and receipt of communications with Plaintiff. (Supp. Levi Decl. ¶¶ 3-4.) Mr. Levi also searched the Federal Protective Service's computerized database of administrative tort claims filed with the agency, but found no claims by Plaintiff. (Levi Decl. ¶ 4.) More recently, Mr. Levi searched the databases of ICE and the DHS, General Counsel's front office, but found no claims filed by Plaintiff. (Supp. Levi Decl. ¶ 7.)

         On November 30, 2016, Plaintiff filed the instant action against Defendant. On October 27, 2017, Defendant filed its motion to dismiss. On December 12, 2017, Plaintiff filed his opposition brief. (Plf.'s Opp'n, Dkt. No. 21.) On December 20, 2017, Defendant filed its reply. (Def.'s Reply, Dkt. No. 22.)

         The Court held a hearing on January 18, 2018. (Dkt. No. 24.) At the hearing, the Court asked Plaintiff what efforts he took to pursue his claim between May 2011 and January 2012. Plaintiff requested leave to file supplemental briefing on the matter, which the Court permitted.

         On February 1, 2018, Plaintiff filed his supplemental brief. (Dkt. No. 28.) Plaintiff explained that he was unable to obtain legal assistance in May 2011, and became "[d]isheartened and overwhelmed, " "succumb[ing] to self-defeating beliefs and feelings . . . ." (Id. at 2.) From May to June, Plaintiff made additional attempts to file, but received wrong information that resulted in his depression, which was increased by the lack of support by his family and friends. (Id.) Plaintiff also continued to deal with the health issues of his live-in partner, and he developed unspecified major health problems, which persist to the present. As a result of these medical problems, and frustration with not being able to obtain legal representation or ...

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