Filing 31

MEMORANDUM OPINION ADOPTING and ACCEPTING the 27 Magistrate Judge's Report and Recommendation, OVERRULING Plaintiff's 30 Objections and FINDING AS MOOT Defendants' 22 MOTION to Dismiss. Signed by Judge Virginia Emerson Hopkins on 5/17/2018. (JLC)

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FILED 2018 May-17 PM 02:47 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION YOLANDA WINSTON, Plaintiff, v. ADUCCI-WASHINGTON, Retired Warden, et al., Defendants. ) ) ) ) ) Case No. 7:17-cv-01099-VEH-SGC ) ) ) ) ) MEMORANDUM OPINION The magistrate judge entered a report on April 19, 2018, recommending: (1) this action be dismissed without prejudice for failing to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2); and (2) that the defendants’ motion to dismiss be denied as moot. (Doc. 27). After obtaining an extension of time to object (see Docs. 28, 29), the plaintiff filed a pleading on May 3, 2018, which the court construes as the plaintiff’s timely objections to the report and recommendation (Doc. 30). In her amended complaint, brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the plaintiff alleges the defendants’ deliberate indifference and failure to provide proper medical care violated her Eight Amendment right against cruel and unusual punishment. (Doc. 11 at 12). The amended complaint also alleges the defendants were negligent under the Federal Tort Claims Act (“FTCA”). (Id.). In her objections, the plaintiff does not challenge the recommendation that her Eighth Amendment claims are due to be dismissed. Instead, the objections contend Aliceville FCI has failed to prevent slip and falls, violating the plaintiff’s right to a safe environment. (Doc. 30 at 1). The objections opine the accident which caused the plaintiff’s toe injury “could have been prevented had Aliceville FCI not been negligent.” (Id. at 2). As noted in the report and recommendation, Bivens does not provide any cause of action against federal employees for negligence. (Doc. 27 at 7). Rather, a claim based on the negligence of a federal employee must be brought against the United States under the FTCA. 28 U.S.C. § 1346(b). The plaintiff’s failure to name the United States as a defendant is therefore fatal to her claim. See Minneci v. Pollard, 565 U.S. 118, 124 (2012) (the defendant in an FTCA action is “the United States, not the individual officers who [] committed the violation”); Simpson v. Holder, 184 F. App’x 904, 908 (11th Cir. 2006) (“The United States is the only proper defendant in an FTCA action.”) (citing 28 U.S.C. §§ 2679(a)-(b); Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998); Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988); Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985)). 2 Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the plaintiff’s objections, the plaintiff’s objections are OVERRULED. (Doc. 30). The magistrate judge’s report is ADOPTED and the recommendation is ACCEPTED. (Doc. 27). Therefore, in accordance with 28 U.S.C. § 1915(e), this action is due to be dismissed without prejudice for failing to state a claim upon which relief can be granted. The defendants’ motion to dismiss is DENIED as MOOT. (Doc. 22). A separate order will be entered. DONE and ORDERED this 17th day of May, 2018. VIRGINIA EMERSON HOPKINS United States District Judge 3

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