United States District Court, E.D. California
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 ...