Zhuang v. Bush et al

Filing 10

Judge Richard G. Stearns: MEMORANDUM AND ORDER on Plaintiff's Motion for Summary Judgment and Defendants' Request for Dismissal, ENTERED. Denying 8 Plaintiff's Motion for Summary Judgment, granting defendants' request for Dismissal copy to Mr. Zhuang on 4/25/13. (Flaherty, Elaine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-12220-RGS
XINRONG ZHUANG
v.
GEORGE W. BUSH, and
BARACK OBAMA
MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DEFENDANTS’ REQUEST FOR DISMISSAL
April 25, 2013
STEARNS, D.J.
Plaintiff Xinrong Zhuang alleges that from 2006 until November of 2009, he was
attacked from the sky by the United States government with powerful war weapons.
Zhuang contends that former President George Bush and current President Barack
Obama are liable in negligence for their failure to prevent agencies within the United
States government from launching these attacks. Zhuang has moved for summary
judgment on his claims. Conversely, the United States has moved for dismissal of
Zhuang’s Complaint under Fed. R. Civ. P. 12(b)(1). Zhuang’s motion for summary
judgment is denied, and the United States motion for dismissal will be allowed for the
following reason.
The government’s motion to dismiss questions “whether the federal district court

has subject matter jurisdiction over the action before it.” United States v. Lahey Clinic
Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir. 2005). In considering a 12(b)(1) motion, the
court is to “credit the plaintiff’s well-pled factual allegations and draw all reasonable
inferences in the plaintiff’s favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st
Cir. 2010). It is Zhuang’s responsibility as plaintiff “to prove the existence of subject
matter jurisdiction.” Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996).
The Federal Torts Claim Act ( FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, is the
exclusive remedy “for injury . . . arising from the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 2679 (b)(1).

The FTCA provides limited waiver of

sovereign immunity of the United States for torts committed by federal employees
acting within the scope of employment. See Santoni v. Potter, 369 F.3d 594, 602 (1st
Cir. 2004). Under the FTCA,
an action shall not be instituted upon a claim against the United States for
money damages 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 government while acting within the scope of his office or employment,
unless 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 and sent by certified or registered mail.
28 U.S.C. § 2675(a).

The FTCA requires presentment of the claim to the

administrative agency prior to filing a lawsuit in order to give the agency sufficient
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notice to commence an investigation, place a value on the claim, and to “permit
settlement of meritorious claims more quickly and without litigation.” Barrett ex rel.
Estate of Barrett v. U.S., 462 F.3d 28, 41 (1st Cir. 2006), quoting Warrum v. United
States, 427 F.3d 1048, 1050 (7th Cir. 2005).
The FTCA dictates that “[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate Federal agency within two
years after such claim accrues.” 28 U.S.C. § 2401(b). “Accordingly, it is well-settled
that an FTCA claim must be dismissed if a plaintiff fails to file a timely administrative
claim.”

Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002).

This

“jurisdictional prerequisite to suit cannot be waived.” Id. In his Complaint, Zhuang
acknowledges that his claim against President Bush accrued on June 8, 2006, and his
claim against President Obama accrued beginning in his first term in 2008, and
culminating in an event in November of 2009. See Complaint ¶¶ 1, 5, 10. As Zhuang
has failed to file administrative claims with the proper government agenc(ies) within
two years of the accrual of those claims, and failed to exhaust his administrative
remedies prior to commencing this litigation, his Complaint must be dismissed.1

1

It also appears that Zhuang did not make proper service on the defendants
under Fed. R. Civ. P. 4(i). The rule prescribes that service be effected upon the United
States, its agencies, and officers by delivering copies of the summons and Complaint
to the United States Attorney by hand delivery or by registered or certified mail, by
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ORDER
For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED.
The United States’ motion to dismiss is ALLOWED. The Clerk may now close this
case.
SO ORDERED.
/s/ Richard G. Stearns
________________________________
UNITED STATES DISTRICT JUDGE

sending copies of the summons and complaint to the Attorney General of the United
States by registered or certified mail, and by sending copies to the officer or agency by
registered or certified mail. See Fed. R. Civ. P. 4(i)(1).
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