Samuel v. United States

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a federal prisoner proceeding pro se with a claim under the Federal Tort Claims Act (“FTCA”), 29 U.S.C. §§ 1346(b), 1402(b), 2401(b), and 2671-2680. Plaintiff claims she was injured when two employees of the United States Attorney's Office for the Eastern District of California “slammed opened” a heavy courtroom door, hitting and injuring her right leg. Presently before the court is defendant's fully briefed motion to dismiss. (ECF No. 27.) For the reasons set forth below the court will recommend that the motion be granted.

         BACKGROUND

         I. Procedural History

         Plaintiff initiated this action by filing the original complaint on June 15, 2018. (ECF No. 1.) Plaintiff filed a first amended complaint and a second amended complaint before the court had an opportunity to screen the complaint. (ECF Nos. 13, 14.) Upon screening, the court dismissed the complaints for failure to state a claim and granted plaintiff leave to file an amended complaint. (ECF No. 16.) Thereafter, plaintiff filed a third amended complaint (ECF No. 20) and a fourth amended complaint (ECF No. 24). The court found that plaintiff's fourth amended complaint stated a potentially cognizable claim and ordered service appropriate for the defendant. (ECF No. 25.)

         In response to the complaint, defendant filed the instant motion to dismiss. (ECF No. 27.) Plaintiff requested, and was granted, several extensions of time to file an opposition. (ECF Nos. 29, 30, 32, 34, 37, 38, 39, 41.) Plaintiff has now filed an opposition (ECF No. 40) and defendant has replied (ECF No. 42).

         II. Allegations in the Operative Complaint

         The events giving rise to the allegations in the complaint occurred during the course of criminal proceedings in which plaintiff was a defendant. See United States v. Samuel et al., 2:10-cr-0223 JAM KJN. Plaintiff alleges that on December 13, 2011, at the U.S. District Court in Sacramento, two Assistant U.S. Attorneys (“AUSAs”), Phillip Ferrari and Michelle Price, slammed open the courtroom door, hitting plaintiff, and injuring her right leg. (ECF No. 24 at 2.) Plaintiff states she suffered internal bruising and bleeding that caused her leg “to break on its own on April 7, 2013.” (Id. at 3.) Plaintiff underwent surgery to repair her leg, but doctors later determined she needed a second corrective surgery. Surgery was scheduled for August 19, 2013 but was ultimately postponed because plaintiff developed an infection.

         Plaintiff claims Judge Mendez, the U.S. District Judge presiding over her criminal case, would not allow her to have surgery before the date she was ordered to surrender and begin her prison term. (Id. at 4-5.) The Ninth Circuit stayed plaintiff's surrender date so that the district court could conduct an evidentiary hearing on the necessity of delaying plaintiff's surrender date so that she could undergo surgery. (Id. at 4.) Following the hearing, Judge Mendez determined that plaintiff's surrender date should not be further postponed, despite testimony from her doctor stating the surgery was not elective, that he recommended surgery be performed as soon as possible, and that requiring plaintiff to travel would be harmful and painful.

         MOTION TO DISMISS

         I. Defendant's Motion

         Defendant argues the court should dismiss this action for lack of subject matter jurisdiction because plaintiff failed to properly exhaust administrative remedies. (ECF No. 27-1 at 1.) Defendant's motion to dismiss also identifies two prior lawsuits, filed by plaintiff and containing allegations similar to those in the present case, that were dismissed by United States District Court for the Northern District of Texas. Both prior suits were dismissed for lack of subject matter jurisdiction. (Id. at 2-4.) Defendant further argues that any claims related to Judge Mendez's rulings are barred by judicial immunity and the claims against the AUSAs are barred because the FTCA's intentional tort exception does not apply to any claims arising out of assault or battery. (Id. at 5, 7.)

         II. Plaintiff's Opposition

         Plaintiff argues she has complied with the exhaustion requirements of the FTCA. (ECF No. 40 at 2.) In support or her argument, plaintiff alleges that she has satisfied the exhaustion requirement by sending a form to the “Federal Building” in December 28, 2011. (Id. at 1-2.) She further claims that the details of the door incident were detailed in a letter from plaintiff's friend in two different filings in plaintiff's criminal case. (Id. at 2.) She states investigation through depositions would reveal the unclean hands of the government. (Id.) Plaintiff further argues Mendez's actions were “an over exertion of power that no absolute immunity can or should shield.” (Id. at 3.)

         LEGAL STANDARDS

         I. Standard of Review on Motion to Dismiss ...