Talbot et al v. United States Department of Agriculture, Forest Service

Filing 6

ORDER for the Clerk to issue summons. Signed by Judge Donald W. Molloy on 10/16/2020. (APP) Copy mailed to Talbot/Richards

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

NANCY TALBOT and HARRY
RICHARDS,

CV 20-129-M-DWM

Plaintiffs,
ORDER
vs.
UNITED STATES DEPARTMENT
OF AGRICULTURE,FOREST
SERVICE,
Defendant.

Plaintiffs Nancy Talbot and Harry Richards bring this suit against the United
States Department of Agriculture, Forest Service for property damage allegedly
caused by exposed nails on a water diverter on Forest Service Road 3606. (Doc.
1.) Because Plaintiffs are proceeding in forma pauperis,(Doc. 5), the Court must
review their Complaint under 28 U.S.C. § 1915. Section 1915(e)(2)(B) requires
dismissal of a complaint filed in forma pauperis before it is served if it is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief “A document
filed pro se is to be liberally construed, and a pro se complaint, however inartfiilly

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pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardu, 551 U.S. 89, 94(2007)(internal citation and
quotation marks omitted); cf. Fed. Rule Civ. Proc. 8(e)(“Pleadings must be
construed so as to do justice”).
The United States has sovereign immunity from suit unless it has waived its
immunity or otherwise consented to the suit. F.D.l.C. v. Meyer, 510 U.S. 471, 475
(1994). If sovereign immunity has not been waived, the case must be dismissed
for lack of subject matter jurisdiction. Id. The Federal Tort Claims Act(FTCA)
grants a waiver of sovereign immunity in certain cases. 28 U.S.C. § 1346(b)(1).
The FTCA generally authorizes suits against the United States for property damage
caused by the negligent or wrongful act or omission of any employee ofthe
Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law ofthe place where the act or omission
occurred.” Id.; see Jachetta v. United States, 653 F.3d 898,904(9th Cir. 2011).
The timely filing of an administrative claim is a jurisdictional prerequisite to
the bringing of a suit under the FTCA,and it must be affirmatively alleged in the
complaint. See McNeil v. United States, 508 U.S. 106, 111 (1993); Munns v.
Kerry, 782 F.3d 402,413 (9th Cir. 2015)
(“The FTCA requires, as a prerequisite
for federal court jurisdiction, that a claimant first provide written notification ofthe
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incident giving rise to the injury, accompanied by a claim for money damages to
the federal agency responsible for the injury.”); Brady v. United States, 211 F.3d
499, 502(9th Cir. 2000). Further, no legal action may be instituted under the
FTCA unless the claimant first presented his claim to the appropriate Federal
agency and either the claim was finally denied by the agency in writing and sent by
certified or registered mail, or the agency failed to make final disposition ofthe
claim within six months of its filing. See 28 U.S.C. § 2675(a). But “there is no
limit on when a plaintiff may file a lawsuit predicated on a deemed denial.
Barnes v. United States, 776 F.3d 1134, 1140-41 (10th Cir. 2015)(collecting
cases). Because the FTCA’s exhaustion requirement is jurisdictional in nature, it
must be strictly adhered to.” Brady, 211 F.3d at 502; see also Vacek v. U.S.
Postal Serv., 447 F.3d 1248, 1250(9th Cir. 2006)
(“We have repeatedly held that
the exhaustion requirement is jurisdictional in nature and must be interpreted
strictly.”).
Here, Plaintiffs allege that “[a]11 administrative remedies have been
exhausted,”(Doc. 1 at 3), and attach two administrative Standard Form 95 claims.
one dated April 26, 2019,(Doc. 1-1 at 1-7), and one dated May 31, 2019,{id. at 811). These forms identify property damage arising out ofthe Forest Service’s
alleged conduct that occurred in January and April 2019. The forms are both
addressed to the “USDA Forest Service” and they request a sum certain in
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damages. There is no indication that the agency issued a final denial ofthe claim
prior to February 2020 as to trigger a time bar. See 28 U.S.C. § 2401(b). While
the government may be able to present administrative defenses and/or statutory
exclusions to Plaintiffs’ claims, Plaintiffs’ complaint satisfies the requirements of
28 U.S.C. § 1915, and the government is required to answer.
Accordingly, IT IS ORDERED:
1. Pursuant to Rule 4(i) ofthe Federal Rules of Civil Procedure,the Clerk of
Court shall issue and serve a summons and Plaintiffs’ Complaint by certified mail
upon:
U.S. Attorney for the
District of Montana
Civil Process Clerk
901 Front Street
Suite 1100
Helena, MT 59626

U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

USDA Forest Service
lOlB Sun Ave.NE
Albuquerque, NM 87109

2. Any party’s request that the Court grant relief, make a ruling, or take an
action of any kind must be made in the form of a motion, with an appropriate
caption designating the name ofthe motion, served on all parties to the litigation.
pursuant to Federal Rules of Civil Procedure 7, 10, and 11. If a party wishes to
give the Court information, such information must be presented in the form of a
notice. The Court will not consider requests made or information presented in
letter form.

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3. At all times during the pendency ofthis action, Ms. Talbot and Mr.
Richards shall immediately advise the Court of any change of address. A failure to
do so may result in the dismissal ofthe action for failure to prosejiute.
DATED this ^day of October, 2020.

k
DonaW W. MdTtey, District Judge
United States District Court

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