CANUTO v. USA

Filing 4

UNREPORTED OPINION and ORDER granting 2 Motion for Leave to Proceed in forma pauperis; and dismissing plaintiff's complaint for lack of subject matter jurisdiction. The Clerk is directed to enter judgment. No costs. Signed by Judge Charles F. Lettow. (dls) Copy to parties.

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No. 15-410C

(Filed: April 27,2015)

(NOT TO BE PUBLISHED)
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FILED
APR 2

7

2015

U.S. COURTOF
FEDERALCLAIMII

TERESITA A, CANUTO,

Plaintiff,

UNITED STATES,
Defendant.
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OPINIONAND ORDER
LETTOW, Judge.
Plaintiff, Teresita Canuto, has filed a complaint seeking relieffor personal injuries that
allegedly resulted from wrongful acts committed by employees of the govemment and
Department of Defense acting within the scope of their employment. Also pending beiore the
court is Ms. Canuto's application to proceed informa pauperis.

BACKGROUND
Ms. Canuto is a nurse employed by a firm providing home health care. Compl. at 1. She
claims that in October 2014, while caring for a patient in his townhouse in North Hills,
Califomia, she was assaulted by one or multiple members of the United States Army and Navy
who served as tenants occupying a spare room within her patient's home. See Compl. at 3-10.
Specifically, Ms. Canuto alleges that in October 2014 she noticed a painful u-shaped wound of
unknown origin while bathing her patient and later developed a bruise "at the anterior lower tibia
of [her] right leg." Compl. at 4, 6. In November 2014, Ms. Canuto reports that she also lost her
appetite, had dilficulty sleeping through the night, and, after examining herself, noticed
additional injuries. compl. at 6-7. while Ms. canuto alleges no recollection of any specific
attack in her complaint, she claims that she "was subjected to . . ' the incision . . . of [her] big
forefinger of [her] left foot" and "[t]he right lower tibia of [her] leg was hit hard by a hard object
. . . before [she] was sexually assaulted [on] separate occasions or times by . ' . men of [the]
Department of Defense." Compl. at 7. Ms. Camuto claims that a similar attack occurred in
March 2015, this time in her home while she, her husband, and her son were asleep. Compl. at

15,

32.

ofan "[i]nhalation
7. Additionally, she

She suggests that both attacks were made possible by the application

and mobility. Compl.

at

agent" that caused her to lose consciousness
identifies the owners of nearby townhouses as collaborators in the attack. Compl. at 11.
Ms. Canuto did not inform the Los Angeles Police Department of either incident, reasoning that,
"it would [have been] fruitless" because she "did not notice[] any pain . . . after the assault[s]"
and therefore "cannot point out when and [at] what time these assaults happened to [her]."
Compl. at 12.
In terms ofrelief, Ms. Canuto seeks "[c]ompensatory damages, including general and
special damages" and "[a]ny further relief which the court may deem appropriate." Compl. at
38.

STANDARDS FOR DECISION
Before addressing the merits ofa case, the court is obligated to "satisS' itself that it has
jurisdiction to hear and decide a case." Hardie v. United Stqtes,367 F.3d1288,1290 (Fed. Cir.
2004) (quoting PIN/NIP, Inc. v. Plstte Chem. Co.,304 F.3d 1235,1241 (Fed. Cir. 2002))
(intemal quotation marks omitted). The Tucker Act grants this court 'Jurisdiction to render
judgment upon any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation ofan executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort." 28 U.S.C. $ 1491(a)(1). The Act waives sovereign immunity, thus permitting a
claimant to sue the United States for monetary damages. United States v. Mitchell,463 U.S. 206,
212 (1983). However, the Act itselfdoes not provide a substantive right to monetary relief
against the United States. United States v. Testan,424U.S.392,398 (197 6): see also Martinez
v. (Jnited States,333 F.3d 1295,1302-03 (Fed. Cir. 2003) (en banc). "A substantive right must
be found in some other source of law." Mitchell,463 U.S. at216. To satisfy the juridical
requirements ofthe Tucker Act, the plaintiff must establish an independent right to monetary
damages by identifying a substantive source of law that mandates payment from the United
States for the injury suffered. Testan, 424 U.S. at 400; see also Ferreiro v. United States, 501
F.3d I 349, 1351-52 (Fed. Cir. 2007) ("[T]o establish jurisdiction under the Tucker Act for a suit
for money damages, 'a plaintiff must identifr a separate source of substantive law that creates
the right to money damages,' in other words, 'that source must be 'money-mandating."')
(quoting Fisher v. (Jnited States, 402 F .3d 1167 , 1172 (Fed. Cir. 2005) (en banc in relevant
part))

ANALYSIS

A.

Subject Matter Jurisdiction

Ms. Canuto premises this court's jurisdiction on the Federal Tort Claims Act ("FTCA"),
28 U.S.C. $$ 2671-80; see also28 U.S.C. $ 1346(b). ,See Compl. at 1.r The FTCA enables

lIn relevant part, Section 1346 provides the following:
[T]he district courls . . . shall have exclusive jurisdiction ofcivil actions on claims
against the United States, for money damages . . . for injury or loss ofproperty, or

federal district courts to hear tort claims against the government in situations where harm was
caused by a government employee acting within the scope of his or her office or employment.
That jurisdictional grant does not, however, apply to this court because "[t]he plain language of
the Tucker Act excludes from the Court ofFederal Claims jurisdiction claims sounding in tort."
Rick's Mushroom Serv., Inc. v. Ilnited States,521 F.3d 1338, 1343 (Fed. Cir. 2008); see also
Shearin v. LJnited States,992F.2d 1195, 1197 (Fed. Cir. 1993) (noting that the Tucker Act limits
this court's jurisdiction to "cases not sounding in tort") (quoting 28 U.S.C. $ 1491(a)(l)
(emphasis in original). Claims of assault and battery are tort claims. See, e.g., Harbuty v.
Hayden,522F.3d4l3,422 (D.C. Cir.2008).2 Therefore, this court lacks jurisdiction to entertain
the claims presented by Ms. Canuto.

B. Possibiliry of Transfer
Ms. Canuto has not requested that the court transfer her case to an appropriate district
court. Nonetheless, the court will consider the possibility of a transfer because Ms. Canuto is
proceedingpro se. See Pleasant-Bey v. United States,99Fed. CI.363,368 (2011). Dismissal is
generally required as a matter oflaw if a court lacks jurisdiction to decide the merits of a case,
see Johnson v. (Jnited States,105 Fed. Cl. 85, 91 (2012), however, in limited instances, the court
may transfer the action to a federal court that would have jurisdiction, see Gray v. United States,
69 Fed. Cl. 95, 98 (2005). In accord with 28 U.S.C. $ 1631, transfer ofa case is appropriate if
"(1) the transferor court lacks jurisdiction; (2) the action could have been brought in the
transferee court at the time it was filed; and (3) transfer is in the interest ofjustice." Zoltek Corp.
v. United States,672F.3d 1309, 1314 (Fed. Cir.2012); see also Christianson v Colt Indus.
OperatingCorp.,436 U.S. 800, 819 (1988).
In this instance, transfer would be inappropriate because no district court would have
been able to exercise jurisdiction over Ms. Canuto's claims at the time she filed her complaint.
For a district court to entertain an FTCA claim, an administrative claim must first have been filed
pursuant to the procedures outlined under 28 C.F.R. $$ 14.2'14.4 \ee, e.g., Kokotis v. United
States Postal Serv.,223 F.3d 275,278-79 (4th Cir. 2000) (intemal citations omitted); Jackson v.
UnitedStates,T3OF.2d 808,809-10 (D.C. Cir. 1984); Gonzalez v. United States Postal Serv.,
543 F. Supp. 838, 839-40 (N.D. Cal. 1982). "This administrative exhaustion component ofthe
FTCA, also known as the Act's 'presentment requirement,' is a 'jurisdictional prerequisite to
filing suit,"' Taylorv. Ctark,821F. Supp. 2d370,374 (D.D.C.2011) (quoting GAFCorp.v.
personal injury or death caused by the negligent or wrongful act or omission of
any employee of the [g]ovemment while acting within the scope of his offrce or
employment, under circumstances where the United States, 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

u.s.c. $ 1346(bX1).

2Additionally, to the extent that Ms. Canuto aileges criminal violations, this court also
lacks jurisdiction over claims arising under the criminal code. See Joshua v. United States, 17
F.3d 378, 379 (Fed. Cir. 1994) ("The court has no jurisdiction to adjudicate any claims
whatsoever under the federal criminal code.").

United Stqtes,818 F.2d 901, 904 (D.C. Cir. 1987)), and failure to file an administrative clarm
results in dismissal by a district court for want ofjurisdiction, see, e. g., Velez-Diaz v. United
States,507 F.3d 717,718 (1st Cir.2007) (noting that a federal court suit filed before
administrative exhaustion "does not ripen but is baned") (citing McNeil v. United States,508
U.S. 106, 112-13 (1993)); Gibbsv. UnitedStates,365 F. Supp.2d1127,1140-42 (M.D. Fla.
2012), aff'd,517 Fed. Appx. 664 (1 1th Cir. 2013) (stating that ifa party files suit against United
States under the FTCA in district court before filing an administrative claim and exhausting
statutory administrative remedies, "the suit will be premature and the district court will lack
subject matter jurisdiction over the action"). Ms. Canuto has given no indication that she sought
administrative relief prior to seeking redress in this court. Indeed, she specifically notes that she
did not inform the Los Angeles Police Department ofthe circumstances surrounding her alleged
assaults. SeeCompl. at 12. Therefore, the court is unable to transfer her claims to an appropriate
district court. See Johnson, 105 Fed. Cl. at 96 (refusing to transfer case to disftict court when no
district court could have heard plaintiffs claim at time of filing).

CONCLUSION
For the reasons stated, Ms. Canuto's complaint is dismissed for lack of subject matter
enter judgment in accord with this disposition.i

jurisdiction. The clerk shall
No costs.

It is so ORDERED.

Judge

3Ms. Canuto's application for leave to proceed informa pauperis is GRANTED.
A