United States District Court, N.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
federal tort claim suit will be dismissed with leave to
amend. It suffers from two serious deficiencies: it fails to
show that the claim(s) were administratively exhausted, and
it does not identify the individual who caused her injuries,
or at least show that plaintiff Lisa Moody has diligently
attempted to identify him or her. Accordingly, the complaint
is DISMISSED with leave to file an amended complaint on or
before July 9, 2018.
a federal prisoner, alleges that she was injured during a
prison transport owing to the faulty driving of a United
States Marshal, whose name she does not provide. Her
complaint under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b),
2671-2680, containing these allegations is now before the
Court for review pursuant to 28 U.S.C. § 1915A(a).
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See Id.
§ 1915A(b)(1), (2). Pro se pleadings must be liberally
construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). Furthermore, a court
“is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
FTCA provides that district courts have exclusive
jurisdiction over civil actions against the United States for
money damages “for injury or loss of property, or
personal injury or death caused by the negligent or wrongful
act or omission of any employee” of the federal
government while acting within the scope of his office or
employment. 28 U.S.C. § 1346(b). The United States is
only liable “if a private person would be liable to
the claimant in accordance with the law of the place where
the act or omission occurred.” Id.; 28 U.S.C.
§ 2674. Put another way, the United States waives
sovereign immunity only under circumstances where local law
would make a private person liable in tort. United States
v. Olson, 546 U.S. 43 (2005). The FTCA expressly bars
claims for intentional torts such as assault, battery, false
imprisonment, false arrest and malicious prosecution.
Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir. 1996)
(citing 28 U.S.C. § 2680(h)).
timely filing of an administrative claim is a jurisdictional
prerequisite to the bringing of a suit under the FTCA.
See Brady v. United States, 211 F.3d 499, 502 (9th
Cir. 2000). This means that before filing an FTCA
claim in federal court, the plaintiff must file an
administrative claim with the proper agency and have
it denied by the agency in writing. Id. at 503. A
prematurely filed FTCA claim must be dismissed even if the
plaintiff ultimately exhausts his administrative remedies
before substantial progress has occurred in the case.
McNeil v. United States, 508 U.S. 106, 110, 133
Moody's allegations are liberally construed, she appears
to have stated a claim for negligence. However, the complaint
has two deficiencies that must be cured before the suit can
proceed. First, she has not shown that she has complied with
the exhaustion requirement. Because this requirement is
jurisdictional, Moody must show that she has properly
exhausted her claims before this suit can proceed. In her
amended complaint, Moody must provide specific details about
her attempts to exhaust. If she cannot show she has properly
exhausted her claims, the suit must be dismissed.
Moody must provide the name of the driver, or at least show
that she has diligently attempted to obtain his ...