Santiago v. United States of America

Filing 5

ORDER OF SERVICE. Signed by Judge Vaughn R Walker on 5/19/09. (Attachments: # 1 Certificate of Service)(sv, COURT STAFF) (Filed on 5/19/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II Federal courts must engage in a preliminary screening of I Plaintiff, a former prisoner at the Federal Correctional Institution in Dublin, California (FCI ­ Dublin), has filed a pro se complaint for damages under the Federal Tort Claims Act ("FTCA"), 28 USC §§ 1346(b), 2671-2680, alleging that officials at FCI ­ Dublin were grossly negligent with respect to the safety of the cell in which she was housed and with respect to her medical care once she sustained an injury. v UNITED STATES OF AMERICA Defendant(s). / ORDER OF SERVICE JEANINE SANTIAGO, Plaintiff, No C-09-0160 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 USC § 1915A(a).

The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id § 1915A(b). Pleadings filed by pro se Balistreri v

litigants, however, must be liberally construed.

Pacifica Police Dep't, 901 F2d 696, 699 (9th Cir 1990).

A Absent a waiver, sovereign immunity shields the federal government and its agencies from suit. 549, 554 (1988). Loeffler v Frank, 486 US

In passing the FTCA, Congress waived the sovereign

immunity of the United States for torts committed by federal employees acting within the scope of their employment. Meyer, 510 US 471, 475-76 (1994). The FTCA encompasses liability 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 the employee's office or employment. 28 USC §§ 1346(b), 2672. The statute defines "employee FDIC v

of the government" to include "officers and employees of any federal agency." Id § 2671. The court must determine whether the United States is subject to tort liability by applying the law of the state where the

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act or omission occurred.

See McMillan v United States, 112 F3d

1040, 1043 (9th Cir 1997); Ciao v INS, 16 F3d 1039, 1041 (9th Cir 1994). The United States is liable only "if a private person[]

would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 USC § 1346(b). Put

simply, 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 US 43 (2005); accord Ravel v

United States, 22 F3d 960, 961 (9th Cir 1994) (US must be treated as private person even if different rule applies to state governmental entities); Tekle v United States, 511 F3d 839, 854 (9th Cir 2007) (liability of federal officers for false arrest or imprisonment is governed by state law regarding liability of private individual for effectuating a false "citizen's" arrest). encompass constitutional torts. The FTCA does not

See Meyer, 510 US at 476-78.

Instead the FTCA is limited to state torts since its source of substantive liability is the law of the state where the act or omission occurred. Id at 477 (citations omitted).

B On December 3, 2006, plaintiff fell while climbing down from her bunk bed in her cell at FCI ­ Dublin and was "impaled by [a] protruding screw." Plaintiff claims officials at FCI ­ Dublin

were grossly negligent in creating unsafe living conditions and in providing her with medical care following her injury. Liberally

construed, plaintiff's allegations appear to state a claim under the

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FTCA.

III For the foregoing reasons and for good cause shown: 1. The clerk shall issue summons and the United States

Marshal shall serve the United States, without prepayment of fees, by delivering a copy of the summons and complaint to the United States Attorney for the Northern District of California. Civ P 4(i)(1)(A)(i). See Fed R

The clerk shall send a copy of the summons and

complaint by registered or certified mail to the Attorney General of the United States in Washington, DC. See id 4(i)(1)(B). The clerk

also shall send a copy of this order to plaintiff. 2. In order to expedite the resolution of this case, the

court orders as follows: a. No later than 90 days from the date of this

order, defendant shall file a motion for summary judgment or other dispositive motion. A motion for summary judgment shall be

supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56, and shall include as exhibits all records and incident reports stemming from the events at issue. If defendant is of the opinion that this case cannot be

resolved by summary judgment or other dispositive motion, it shall so inform the court prior to the date its motion is due. All papers

filed with the court shall be served promptly on plaintiff. b. Plaintiff's opposition to the dispositive motion

shall be filed with the court and served upon defendant no later

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than 30 days after defendant serves plaintiff with the motion. c. Plaintiff is advised that a motion for summary

judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in Generally, summary

order to oppose a motion for summary judgment.

judgment must be granted when there is no genuine issue of material fact - that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for

summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in

declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If

you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is

granted, your case will be dismissed and there will be no trial. Rand v Rowland, 154 F3d 952, 962-63 (9th Cir 1998) (en banc) (App A). Plaintiff also is advised that a motion to dismiss for failure to exhaust administrative remedies under 42 USC section 1997e(a) will, if granted, end your case, albeit without prejudice. You must "develop a record" and present it in your opposition in

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order to dispute any "factual record" presented by the defendants in their motion to dismiss. (9th Cir 2003). d. Defendant shall file a reply brief within 15 Wyatt v Terhune, 315 F3d 1108, 1120 n14

days of the date on which plaintiff serves it with the opposition. e. The motion shall be deemed submitted as of the No hearing will be held on the motion

date the reply brief is due.

unless the court so orders at a later date. 3. Discovery may be taken in accordance with the Federal No further court order is required before

Rules of Civil Procedure.

the parties may conduct discovery. 4. All communications by plaintiff with the court must

be served on defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant's counsel. // // // // // // // // // // //

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5.

It is plaintiff's responsibility to prosecute this

Plaintiff must keep the court and all parties informed of any

change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of

this action pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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