Telford v. USA
MEMORANDUM AND ORDER - Plaintiff shall have 30 days to amend her complaint in accordance with this Memorandum and Order. Failure to file an amended complaint will result in the dismissal of this matter without further notice. The Court reserves the right to conduct further review of plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2) after plaintiff addresses the matters set forth in this Memorandum and Order. The clerk of the court is directed to set a pro se case management d eadline in this case using the following text: July 15, 2013: check for amended complaint. Ordered by Senior Judge Lyle E. Strom. (Copy e-mailed to pro se party)(GJG) Modified on 6/20/2013 to change notice from mailed to e-mailed to pro se party (GJG).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER
Plaintiff Hollie Telford filed her complaint in this
matter on January 22, 2013 (Filing No. 1).
Plaintiff has been
given leave to proceed in forma pauperis (Filing No. 7).
Court now conducts an initial review of plaintiff’s claims to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Liberally construed, plaintiff filed this suit under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680,
against the United States of America.
She alleges that she was held in a federal facility
for three years after she was “falsely charged with Bankruptcy
fraud and forgery in 2006.”
(Filing No. 1 at CM/ECF p. 1.)
some point during her detention, “prison officers” assaulted her,
which resulted in eight broken teeth.
She was then sent
to “FMC” to have her teeth repaired, which “FMC” failed to do.
On January 21, 2009, the federal government dismissed the
criminal charges pending against her.
(Id. at CM/ECF pp. 2 and
The documents plaintiff attached to her complaint
reflect that plaintiff filed an administrative tort claim with
the United States Department of Justice (“DOJ”) on October 28,
2009, and the DOJ acknowledged receipt of the claim.
CM/ECF p. 11.)
Plaintiff alleges that, to date, the DOJ has not
denied her claim.
(Id. at CM/ECF p. 3.)
As relief, plaintiff
seeks “full damages claimed” in the administrative tort claim she
filed with the DOJ.
(Id. at CM/ECF p. 5.)
claim form reflects that plaintiff sought $2,000,000.00 for
injuries she suffered while she was held in federal custody.
(Id. at CM/ECF p. 7.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis
complaints to determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2).
The Court must dismiss a complaint
or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be
granted, or that seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual
allegations to “nudge their claims across the line from
conceivable to plausible,” or “their complaint must be dismissed”
for failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see
also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to
state a claim.
See Martin v. Sargent, 780 F.2d 1334, 1337 (8th
However, a pro se plaintiff’s allegations must be
Burke v. North Dakota Dep’t of Corr. &
Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
III. DISCUSSION OF CLAIMS
Plaintiff sues the United States of America under the
In the FTCA, Congress waived the United States’ sovereign
immunity for claims arising out of torts committed by federal
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217
(2008); see also 28 U.S.C. §§ 1346(b)(1), 2671–2680.
successfully sue under the FTCA, a claim must be: (1) against the
United States; (2) for money damages; (3) for injury or loss of
property, or personal injury or death; (4) caused by the
negligent or wrongful act or omission of any employee of the
federal government; (5) while acting within the scope of his or
her employment; and (6) under circumstances where the United
States, if a private person, would be liable to the plaintiff in
accordance with the state law where the act or omission occurred.
28 U.S.C. § 1346(b); FDIC v. Meyer, 510 U.S. 471, 477-78 (1994).
The only proper defendant in an FTCA action is the United States.
See 28 U.S.C. § 2679(a).
Exhaustion of administrative remedies is a
jurisdictional prerequisite to suit under the FTCA.
2675(a) provides, in relevant part:
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. The failure of an agency to
make final disposition of a claim
within six months after it is filed
shall, at the option of the
claimant any time thereafter, be
deemed a final denial of the claim
for purposes of this section. . . .
28 U.S.C. § 2675(a).
Here, Plaintiff has not received a final denial of her
However, pursuant to 28 U.S.C. § 2675(a),
she is entitled to deem her claims denied at “any time” after six
months of agency inaction.
Here it appears that the DOJ
acknowledged receipt of plaintiff’s administrative tort claim on
October 28, 2009, but has not since denied or approved her claim.
Thus, based on the record currently before the Court, it appears
that plaintiff has exhausted her administrative remedies.
However, this matter may not proceed to service at this
time because plaintiff has not alleged sufficient facts to state
a claim upon which relief may be granted.
Courts decide FTCA
claims under the law of the state where the tort occurred.
Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 743 (8th Cir.
Here, plaintiff does not allege where the tort occurred.
She does not set forth where she “was kept in jail as a pretrial
detainee for 3 years,” where she was assaulted by prison
officers, or where officials failed to repair her broken teeth.
In addition, plaintiff does not describe, with any specificity,
the facts surrounding the assault she mentions in her complaint
or the facts surrounding the “FMC[’s]” failure to repair her
On the Court’s own motion, the Court will provide
plaintiff with an opportunity to file an amended complaint that
sufficiently describes her claims against defendant.
should be mindful to clearly identify who injured her, how she
was injured, and where the injury occurred.
See Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (reiterating that a complaint must
state enough to give the defendant fair notice of what the claim
is and the grounds upon which it rests).
IT IS ORDERED:
Plaintiff shall have 30 days to amend her
complaint in accordance with this Memorandum and Order.
to file an amended complaint will result in the dismissal of this
matter without further notice.
The Court reserves the right to conduct further
review of plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2)
after plaintiff addresses the matters set forth in this
Memorandum and Order.
The clerk of the court is directed to set a pro se
case management deadline in this case using the following text:
July 15, 2013:
check for amended complaint.
DATED this 20th day of June, 2013.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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