Faison v. United States Of America

Filing 28

MEMORANDUM (eo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERRY FAISON WILLIAMS,
as Power of Attorney for her Father,
Louis T. Faison, Sr.,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

:
:
:
:
:
:
:
:
:
:

4:11-cv-395

Hon. John E. Jones III

MEMORANDUM
August 5, 2011
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Pending before the Court is the United States of America’s Motion to
Dismiss, or in the Alternative, for Summary Judgment (“the Motion”) (Doc. 14),
filed on May 20, 2011. Plaintiff1 filed a brief in opposition to the Motion on July
8, 2011. (Doc. 27). The United States has not filed a reply and the time to do so
has passed. Accordingly, this matter is ripe for our review.
I.

BACKGROUND
This Federal Torts Claim Act (“FTCA”) action was filed, through Plaintiff’s

former counsel, on January 28, 2011. The action was styled as Plaintiff Terry

1

On June 16, 2011, we issued an Order (Doc. 26) granting Plaintiff’s counsel’s Motion to
Withdraw as Attorney. (Doc. 23). Plaintiff is now proceeding pro se in this action.

Faison Williams, as Power of Attorney for her Father, Louis T. Faison, Sr. versus
the United States of America. The action arises out of the alleged wrongful death
of Louis Thomas Faison, Jr. while he was an inmate at the United States
Penitentiary at Lewisburg, Pennsylvania (“USP-Lewsiburg”). Plaintiff Terry
Faison Williams is attempting to bring the wrongful death action on her father’s
behalf, via a power of attorney she has from her father, Louis T. Faison, Sr.
On May 20, 2011, the United States of America filed the instant Motion
arguing for the dismissal of this case based on Terry Faison Williams’ lack of
standing to pursue a FTCA claim related to her brother’s death while incarcerated
at USP-Lewisburg because she is not the personal representative of the decedent’s
estate.2 The Plaintiff has filed an opposition brief to the pending Motion, asserting
that she does have standing to sue the United States on her father’s behalf for the
alleged wrongful death of her brother.

2

Additionally, the United States argues that Plaintiff’s failure to file a Certificate of
Merit in accordance with Pennsylvania Rule of Civil Procedure 1042.3 is fatal to her claim.
Because we find that Terry Faison Williams does not have standing to bring this action, we shall
not address this argument made by the United States.
2

II.

STANDARD OF REVIEW3
Summary judgment is appropriate if the record establishes “that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party bears the
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by
pointing to an absence of evidence supporting an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at 325. Once the
moving party meets its burden, the burden then shifts to the non-moving party to
show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is
“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find
for the non-moving party, and a factual dispute is “material” only if it might affect
the outcome of the action under the governing law. Anderson v. Liberty Lobby,
Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party “may not rely merely
on allegations of denials in its own pleadings; rather, its response must ... set out
specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The

3

Inasmuch as the Court took cognizance of facts outside the pleadings, the appropriate
standard of review to apply here is the FRCP 56 summary judgment standard. Thus, we shall not
set forth the FRCP 12(b)(6) motion to dismiss standard.
3

non-moving party “cannot rely on unsupported allegations, but must go beyond
pleadings and provide some evidence that would show that there exists a genuine
issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
Arguments made in briefs “are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.
Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
However, the facts and all reasonable inferences drawn therefrom must be viewed
in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, “the
mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; there must be a
genuine issue of material fact to preclude summary judgment.” Anderson, 477
U.S. at 247-48.
III.

DISCUSSION
The undisputed facts relevant to our inquiry herein are as follows. The

decedent, Louis Thomas Faison, Jr. died on April 2, 2008, while he was an inmate
4

at USP-Lewisburg. On March 11, 2010, Veta B. Faison was certified as the
Administrator of the Estate of Louis Thomas Faison, Jr. in the Commonwealth of
Virginia. Thereafter, on December 21, 2010, Veta B. Faison filed a wrongful death
claim in this Court, docketed at 4:10-cv-2603.4
It is well established that pursuant to Pennsylvania Rule of Civil Procedure
2202, actions for wrongful death may only be brought by the personal
representative of the decedent. Further, while a personal representative’s wrongful
death action is pending, the existence of such action bars the bringing of any other
action for such wrongful death. See Pa. R. C. P. 2202.
Here, it is beyond dispute that Veta Faison is the personal representative for
the estate of Louis Thomas Faison, Jr. and that she has already brought a wrongful
death action in this Court arising out of the decedent’s alleged wrongful death.
Accordingly, based on the operation of Pa. R. C. P. 2202, Terry Faison Williams is
barred from bringing the instant suit, either in her own capacity or with a power of
attorney from her father. Veta Faison, as the personal representative of the
decedent’s estate, is the only party with standing to pursue a wrongful death claim
here. Accordingly, because Plaintiff lacks standing to pursue this claim, the action
must be dismissed.

4

This action is also assigned to the undersigned. It is currently referred for mediation.
5

IV.

CONCLUSION
Accordingly, based on all of the foregoing, the United States of America’s

Motion to Dismiss, or in the alternative, for Summary Judgment shall be granted
and this action shall be dismissed. An appropriate Order shall issue.

6