DAVIS v. POSTMASTER et al
Filing
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ORDER - For the reasons explained herin, treating it as a motion for summary judgment, the Court GRANTS Defendants' Motion to Dismiss. [Dkt. 19 .] Final judgment will issue accordingly. Signed by Judge Jane Magnus-Stinson on 1/2/2014. (copy to Plaintiff via US Mail) (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY DARNELL DAVIS,
Plaintiff,
vs.
UNITED STATES POSTAL SERVICE, AND
UNITED STATES DEPARTMENT OF LABOR,
Defendants.
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1:12-cv-1794-JMS-DML
ORDER
Pending before the Court is Defendants’ Motion to Dismiss Plaintiff Larry Davis’
Amended Complaint. [Dkt. 19.] For the reasons that follow, the Court GRANTS Defendants’
Motion.
I.
BACKGROUND
Mr. Davis, a former employee of the Defendant United States Postal Service (“USPS”)
and proceeding pro se, brought this suit against Defendants, alleging that the “[USPS] placed the
Partial Disabled Plaintiff in a job that was not suitable for [his] restrictions which caused [him] to
be injured,” [dkt. 1 at 6], and that the Department of Labor (“DOL”) “denied [his] bilateral
cubital tunnel as an on-the-job injury,” [id. at 7]. Defendants moved to dismiss Mr. Davis’
Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. [Dkt. 10.]
The Court dismissed Mr. Davis’ claim against the DOL because he sought review of the
DOL’s adverse workers compensation decision, and the Federal Employees’ Compensation Act,
5 U.S.C. § 8101, et seq., expressly precludes judicial review of those decisions. [Dkt. 17 at 3
(citing 5 U.S.C. § 8128(b)).] As to Mr. Davis’ claim against the USPS, Defendants construed his
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claim as one made pursuant to the Federal Tort Claims Act (“FTCA”) and argued that Mr. Davis
failed to exhaust his administrative remedies as required under the FTCA. [Dkt. 11 at 3-5.] The
Court held that it was “unclear whether Mr. Davis’ claims [were] being brought under the
FTCA,” and thus gave Mr. Davis the opportunity to file an Amended Complaint that specified
the legal basis for his claim against the USPS. [Dkt. 17 at 3-4.]
Mr. Davis subsequently filed his Amended Complaint. [Dkt. 18.] Defendants then filed
the instant motion seeking dismissal of Mr. Davis’ FTCA claim “pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(b)(6), 12(d), and 56(c).”
[Id.]
Because Defendants rely on
evidence outside Mr. Davis’ Amended Complaint in support of their motion, the Court held that
Defendants’ motion “‘must be treated as one for summary judgment under Rule 56,’” [Dkt. 25
at 1 (quoting Fed. R. Civ. P. 12(d)).] The Court required Defendants to provide Mr. Davis with
the proper notice to pro se litigants under Local Rule 56-1(k), [dkt. 25 at 1], and gave Mr. Davis
the opportunity to file a new response brief, which he did, [dkt. 28]. Defendants did not file a
reply brief, and thus their motion is now ripe for decision.
II.
STANDARD OF REVIEW
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes
clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence or presence of a genuine dispute or
that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.
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56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is competent to testify on matters
stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s
factual assertion can result in the movant’s fact being considered undisputed, and potentially in
the grant of summary judgment. Fed. R. Civ. P. 56(e).
III.
DISCUSSION
Defendants seek summary judgment on Mr. Davis’ claim against the USPS, reasserting
their previously made argument that his claim is an FTCA claim that he cannot bring because he
failed to exhaust his administrative remedies. [Dkt. 20 at 1 (citing dkt. 11 at 3-5).] Mr. Davis
acknowledges that his claim is one made pursuant to the FTCA, but contends that he did exhaust
his administrative remedies. [Dkt. 28 at 1-2.]
Before an FTCA claim can be brought in federal court, “the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing.” 28 U.S.C. § 2675(a); see Glade ex rel. Lundskow v. United
States, 692 F.3d 718, 723 (7th Cir. 2012); Kanar v. United States, 118 F.3d 527, 528 (7th Cir.
1997). Defendants provide evidence that Mr. Davis never presented his FTCA claim to the
USPS, [dkt. 11-1 at 2], and Mr. Davis does not present any evidence to the contrary. Instead, he
asserts that he exhausted his administrative remedies by presenting his workers’ compensation
claim to the DOL. [Dkt. 28 at 2.] Filing a workers’ compensation claim with the DOL,
however, does not satisfy Mr. Davis’ obligation to present his FTCA claim to the USPS before
bringing such a claim in federal court. See 28 U.S.C. § 2675(a) (requiring the FTCA claim to be
“presented to the appropriate Federal agency”) (emphasis added).
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Moreover, Mr. Davis presents no evidence of any kind in opposition to Defendants’
motion. Thus even if Mr. Davis’ brief, liberally construed, contains allegations that he properly
exhausted his administrative remedies by presenting his FTCA claim to the USPS, he provides
no evidence that this is the case. The Federal Rules make clear that Mr. Davis must support any
asserted fact by citing to particular parts of the record. See Fed. R. Civ. P. 56(c)(1)(A). Even
though Mr. Davis is proceeding pro se, he still must comply with such procedural rules. See
McMasters v. United States, 260 F.3d 814, 818 (7th Cir. 2001). He has not, and thus he has not
presented evidence sufficient to preclude summary judgment in Defendants’ favor.
As previously stated, exhaustion is a prerequisite to bringing an FTCA claim in this
Court. See McNeil v. United States, 508 U.S. 106, 113 (1993). Because Mr. Davis failed to
exhaust his administrative remedies, the Court must enter summary judgment in Defendants’
favor.
IV.
DISCUSSION
For the reasons explained, treating it as a motion for summary judgment, the Court
GRANTS Defendants’ Motion to Dismiss. [Dkt. 19.] Final judgment will issue accordingly.
01/02/2014
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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Distribution via U.S. Mail:
LARRY DARNELL DAVIS
5094 Pin Oak Drive
Indianapolis, IN 46254
Distribution via ECF:
Jonathan A. Bont
UNITED STATES ATTORNEY’S OFFICE
jonathan.bont@usdoj.gov
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