Alfa v. The United States of America et al

Filing 12

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 2/2/2015. (c/m 2/4/15 jf2s, Deputy Clerk)

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I" IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND __ * * * * * AMIRAALFA, Plaintiff, v. UNITED STATES of AMERICA, et. al. ENTERED r~1;1) RECEIVED FEB 0 3 2015 AT GAEENBELT CLERK U.S. DISTRICT COUAT DISTRICT OF MARYLAND Civil No . P:JM 14-1773 DEPUTY * * * Defendants. * MEMORANDUM OPINION Amira Alfa, pro se, has sued the United States of America, the National Institutes of Health ("NIH"), and John Does 1 through 10 for negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. S 1346(b), and for what is styled as "premises liability," presumably an action in tort under the Maryland common law. Except for the United States of America and the NIH, no other defendant has been specifically named, served, or appeared in these proceedings. Alfa alleges that, while working for a private contractor at the NIH Main Campus in Bethesda, MD, she was electrocuted while reaching for a switch on a piece of cleaning equipment knowfj as a "barmaid." For the reasons that follow, the United States' Motion to Dismiss (Paper No.8) is GRANTED.' I. The United States, which comprehends its agencies and employees acting within the scope of their employment, is the only proper Defendant for claims under the FTC A. Holmes v. Eddy, 341 F.2d 477, 480 (4th Cir. 1965); 28 U.S.C. S 2679. See At the same time, no state I The United States filed its Motion to Dismiss on November 3, 2014. Alfa's response was due on November 20, 2014. On December 9, 2014, the Clerk of this Court sent a letter to Alfa granting her with an additional seventeer_ (17) days to respond and informing her that a failure to respond could result in the court dismissing the case. To date, Alfa has filed no response. The Court thus rules on the papers before it. -1- , common law action-such as a tort styled "premises liability"-can be asserted against the United States, since the FTCA subsumes all such claims "for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Governmen: while acting within the scope ofl1is office or employment." 28 U.S.C. S 1346(b)(l). Conversely, non-Government individual or entity defendants are obviously not subject to liability under the FTCA but may, at such time as they are identified, be subject to suit based on state law theories. As things stand, however, there is simply no basis for federal jurisdiction as to such claims in this case. II. The United States has moved to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l). pleadings. When ruling on such a motion, the court may consider exhibit~ outside the Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). Accordingly, the Cour,: reviews the attachments to the United States' motion to determine Alfa's empl'Jyment relationship with it. Alfa was employed by Charles River Laboratories Genetic Testing Services ("Charles River"), a company tasked with providing the United States, at its NIH facility in Bethesda, MD, "a wide range of technical and support services required for the proper care, use and humane treatment of laboratory animals to any NIH IC animal program." Ex. 2 at 1I. Its contract "(i]ndependently, with the United States provides Motion to Dismiss ("Mot."), that Charles River shall act and not as an agent of the Government," and itemizes many of the services it would provide, including: "1. [W]ater and clean caging for all species including ... aquatics species" Jd. at 15; "II. Management and maintenance of equipment and supplies ... " Id. at 16; "17. Preventative maintenance on all cage wash equipment ... " Id. at 17. -2- Alfa's job responsibilities with Charles River included feeding fish, performing health checks, and cleaning the fish tanks. MOL, Ex. 1. It was while using the barmaid to clean the fish tanks that Alfa was purportedly injured. Compi. ~ 6. The United States argues that Charles River, as an independent contractor, had the responsibility for the maintenance of the equipment that harmed Alfa. The law, it argues, is well established that the Government's waiver of sovereign immunity under the FTC A does not extend to independent contractors and therefore the Government cannot be vicariously liable for the negligence of independent contractors. See Logue v. United States, 412 U.S. 521, 529-30, 532 (1973); Williams, 50 F.3d 299 at 305-06; Ryan v. u.s., 304 F. Supp. 2d 678, 687 (D. Md. 2004). III. When the Government challenges the court's subject matter jurisdiction, "the plaintiff bears the burden of persuasion and must demonstrate immunity." an unequivocal Ryan, 304 F. Supp. 2d at 681. Additionally, waiver of sovereign "a waiver of the Government's sovereign immunity will be strictly construed, in terms of scope, in favor of the sovereign." Williams, 242 F.3d at 172. Alfa brings her suit against the Government, NIH, and any employees acting within the scope of their employment under the FTCA, but "(t]he government's does not ... extend to the negligence of independent contractors." liability under the FTC A Ryan, 304 F. Supp. 2d at 685 (citing Logue, 412 U.S. at 529-30); see also Williams, 50 F.3d at 304 (reasoning the United States had not waived its sovereign immunity for the actions of an independent contractor and dismissing under Rule 12(b)(1)). In determining whether an entity is an independent contractor, "the critical inquiry is whether the government has the power to control the detailed physical -3- performance of the contractor." United States v. Orleans, 425 U.S. 807,814 (1976). "In shon, to overcome the independent contractor exception, a claimant must establish that the government 'managed the details' or ran the 'daily routine' of the activities constituting the alleged tortious conduct." Ryan, 304 F. Supp. 2d at 685. Here, the contract between the United States and Charles River (Alfa's employer) not only explicitly lists Charles River as an independent contractor; it also includes in that entity's responsibilities the management and maintenance of the cleaning equipment. 17. Mot. Ex. 2 at 15- Moreover, the United States did not perform day-to-day supervision of Charles River employees. independent Mot. Ex. 5 ~ 3. contractor. The conclusion Accordingly, is thus inescapable: Charles River was an the United States cannot be liable for any alleged negligence in the cleaning equipment. IV. To the extent Alfa may wish to pursue non-Government John Doe Defendants, at most they might be suable under Maryland common law for negligence and/or premises liability. The Court need not spend more time on the issue of liability vel non of possible non-Government defendants, however, because none have been named. For these reasons, the Court GRANTS the United States' Motion to Dismiss (Paper Ne. 8). The case will be DISMISSED WITH PREJUDICE against the United States, the National Institute of Health, and any John Doe Defendants who may be Government employees acting within the scope of their employment. The case is DISMISSED WITHOUT PREJUDICE as to any non-Government John Doe Defendants, whether individuals or enities. -4- A separate Order will ISSUE. lsi ER J. MESSITTE ATES DISTRICT JUDGE February 2, 2015 -5-

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