Johnson v. United States of America et al

Filing 65

ORDER TO SHOW CAUSE. Defendant United States shall file Show Cause Response/Statement by 12/2/2013. Signed by Judge Edward M. Chen on 11/22/2013. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 11/22/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ELLIS JOHNSON,

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No. C-13-2405 EMC

Plaintiff,
ORDER TO SHOW CAUSE
v.

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For the Northern District of California

United States District Court

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UNITED STATES OF AMERICA, et al.,

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Defendants.
___________________________________/

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On May 28, 2013, Plaintiff, James Ellis Johnson, a United States veteran, filed a complaint

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against the United States and several other defendants. Plaintiff brought several tort causes of

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action, alleging that the Department of Veterans Affairs Police (“Police”) used excessive force

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during an arrest on January 30, 2012. Plaintiff also alleged a constitutional violation, alleging that

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the San Francisco Veterans Affairs Medical Center violated his due process rights because it placed

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behavioral restrictions on him and deprived him of medical benefits without a hearing. Pending

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before the Court is the United States’ motion to dismiss. Docket No. 22.

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The Federal Tort Claims Act requires a claimant to have first “presented” his claim to the

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“appropriate federal agency” and receive a denial before instituting an action against the United

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States. 28 U.S.C. § 2675. The claim is “presented” when it is received by the agency within two

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years after the claim accrues. See Vacek v. U.S. Postal Service, 447 F.3d 1248, 1251 (9th Cir. 2006).

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If the agency fails to make a “final disposition of a claim within six months after it is filed,” the

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claimant may deem this to be a denial of the claim. 28 U.S.C. § 2675.

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“The claim requirement of section 2675 is jurisdictional in nature and may not be waived.”

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Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985). “[T]he jurisdictional requirement of

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minimum notice is satisfied by ‘(1) a written statement sufficiently describing the injury to enable

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the agency to begin its own investigation, and (2) a sum certain damages claim.’” Id. (quoting

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Warren v. United States Department of the Interior Bureau of Land Management, 724 F.2d 776, 780

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(9th Cir. 1984)).

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Plaintiff has attached to his Opposition to the United States the first sheet of a claim form.

is dated April 23, 2012, which is well within two years of when Plaintiff was arrested, and more than

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six months before Plaintiff filed this action. Plaintiff states on the form that he is attaching the letter

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For the Northern District of California

Docket No. 45 at 93. The form is addressed to the Office of Regional Counsel in San Francisco. It

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United States District Court

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to Judge Beeler and other documents, including MRI reports, which describe Plaintiff’s injury. He

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also states a sum certain of $2 million. However, there is no proof that the form and attached

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documents were received.

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The United States does not assert that Plaintiff has failed to meet the jurisdictional

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requirements of Section 2675 (except to the extent that Plaintiff’s due process claim sounds in tort)

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and moves to dismiss on other grounds. Nonetheless, because Section 2675 is a jurisdictional

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requirement that cannot be waived, the Court lacks jurisdiction to hear Plaintiff’s tort claims unless

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the “appropriate federal agency” has received Plaintiff’s documents. The United States shall file by

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December 2, 2013 a statement indicating whether the claim form and attached documents were

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received.

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IT IS SO ORDERED.

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Dated: November 22, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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