Aguilar v. United States Of America

Filing 32

MEMORANDUM and ORDER DENYING appeal of the Magistrate Judge's order denying the petition for award of costs, fees, or reimbursement 28 Signed by Honorable James M. Munley on 12/2/15. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SAVINO AGUILAR,

:
No. 3:13cv1030
Plaintiff :
:
(Judge Munley)
v.
:
:(Magistrate Judge Carlson)
UNITED STATES OF AMERICA :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM and ORDER
Before the court for disposition is a document filed by Plaintiff Savino
Aguilar entitled “Objections to Magistrate Findings and Conclusions,” which
we will construe as an appeal of a non-dispositive order of the magistrate
judge. The parties have briefed their respective positions on this matter,
and it is ripe for disposition.
Background
Plaintiff, a federal prisoner incarcerated at the United States
Penitentiary Canaan in Waymart, Pennsylvania, filed suit against the
United States of America under the Federal Tort Claims Act (“FTCA”) on
April 19, 2013. (Doc. 1, Complaint). The complaint alleges that the plaintiff
contracted salmonella bacterial poisoning from a poultry product, chicken
fajitas, that were served by the prison. (Id. ¶¶ 8-9). He asserts that he
suffered excruciating pain and symptoms which included severe

headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to
eat and profuse sweating. (Id. ¶ 9). He alleges that to treat him, the prison
provided him with a cup of Gatorade and two aspirins. (Id. ¶ 10). He
instituted the instant action alleging negligence on the part of the United
States and failure to provide necessary medical treatment. (Id. ¶ 23).
In or about July 2013, the parties proceeded to mediation. The
mediator reported to the court that the case had been settled on July 30,
2013. (Doc. 16). The court entered an order of dismissal on July 31, 2013
and dismissed the case without costs. (Doc. 17). We provided the parties
with ninety (90) days in which to consummate the settlement. (Id.)
On June 9, 2015, nearly two years after the case had been closed,
plaintiff filed a document styled as a “petition for award of cost, fees, or
reimburstment [sic].” (Doc. 28). Chief Magistrate Judge Martin C. Carlson
issued an order denying the petition on June 17, 2015. (Doc. 29). Plaintiff
now appeals that decision brining the case to its present posture.
Jurisdiction
As plaintiff filed his lawsuit pursuant to the FTCA, we have
jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or

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treaties of the United States.”)
Legal standard
Plaintiff names his filing as “objections” to the magistrate judge’s
ruling. This matter, however, is not properly deemed objections.
Objections are used when the magistrate judge issues a report and
recommendation on a potentially dispositive motion. This matter is an
appeal of a non-dispositive motion. Here, the magistrate judge issued an
order on the plaintiff’s motion, not a report and recommendation. We will
consider the plaintiff’s “objections” as an appeal of a non-dispositive
magistrate judge order. The standard of review for the appeal of a nondispositive order by a magistrate judge is to determine if the magistrate
judge’s ruling was clearly erroneous or contrary to law. 28 U.S.C.
§ 636(b)(1)(A).
Discussion
Upon review of the matter, and pursuant to 28 U.S.C. § 636, we find
that the magistrate judge’s order of June 17, 2015, is not clearly erroneous
or contrary to law.
Plaintiff seeks an award of fees under the Equal Access To Justice
Act, 28 U.S.C. § 2412(d)(1)(A), which provides:

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Except as otherwise specifically provided by statute,
a court shall award to a prevailing party other than
the United States fees and other expenses, in
addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil
action (other than cases sounding in tort), including
proceedings for judicial review of agency action,
brought by or againt the United States in any court
having jurisdiction of that action unless the court
finds that the position of the United States was
substantially justified or that special circumstances
made an award unjust.
28 U.S.C. § 2412(d)(1)(A).
This act is not applicable in the instant case. The magistrate judge
points out that the settlement agreement between the parties indicates that
the parties would bear their own costs, fees, and expenses.” (Doc. 26-1,
¶ 8). To tax costs against one party after they had agreed that the parties
would bear their own costs would violate the terms of the settlement
agreement. Thus, the magistrate judge denied the motion.
We find nothing clearly erroneous or contrary to the law with regard
to the magistrate judge’s ruling. In fact, we note that when we dismissed
this case it was “dismissed without costs[.]” (Doc. 17). Moreover, the
mandatory provisions of the statute that the plaintiff cites in support of his
motion does not apply to tort cases, and this is an action filed pursuant to
the Federal Tort Claims Act. Accordingly,

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AND NOW, to wit, this 2nd day of December 2015, the plaintiff’s
appeal of the magistrate judge’s order denying the petition for an award of
cost, fees or reimbursement (Doc. 28) is hereby DENIED.
BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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