Summary
denying motion to dismiss, on discretionary-function grounds, FTCA negligence claim based upon improper "selection of a gear before stepping on the gas [while driving a USMS van] and backing up without care"
Summary of this case from Karmue v. RemingtonOpinion
No. 2:11-cv-02835 JAM-CKD
11-06-2013
JUSTIN DOBROWSKI, Plaintiff, v. UNITED STATES OF AMERICA, and DOES 1-10, Defendants.
ORDER GRANTING THE UNITED
STATES' MOTION TO DISMISS IN
PART AND DENYING IN PART
This matter is before the Court on Defendant United States of America's ("the United States") Motion to Dismiss for Lack of Jurisdiction or Motion for Summary Judgment (Doc. #20). Plaintiff Justin Dobrowski ("Plaintiff") opposes the motion (Doc. #21) and the United States replied (Doc. #28). For the following reasons, the United States' motion is GRANTED in part and DENIED in part.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for September 11, 2013.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff filed this action on October 25, 2011 (Doc. #1) against the United States of America acting through the United States Marshals Service ("USMS") (Doc. #11). On March 20, 2013, pursuant to a stipulation and order, the USMS was dismissed as a defendant (Doc. #16). In the First Amended Complaint ("FAC"), the operative complaint, Plaintiff alleges one cause of action against the United States for negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). FAC ¶¶ 20-24. On August 14, 2013, the United States moved to dismiss Plaintiff's FAC for lack of subject matter jurisdiction and/or moved for summary judgment.
Plaintiff's claim arises from personal injuries he allegedly sustained when he was transported by the USMS in a passenger van. FAC ¶¶ 16-17. On March 19, 2010, the USMS transported Plaintiff, a federal prisoner, from the Sacramento County Jail to the Robert T. Matsui United States Courthouse. Declaration of Deputy U.S. Marshal Sara Sloan ("Sloan Decl."), Doc. #20-3, at ¶ 3. Deputy U.S. Marshal Sara Sloan ("Deputy Sloan") with the assistance of District Security Officer Joseph Ramirez operated the passenger van. Id. ¶ 4. The passenger van was not equipped with seat belts for prisoner passengers. Declaration of Albert Najera ("Najera Decl."), Doc. #20-2, at ¶ 10.
Parties disagree as to what occurred in the secured garage located in the back of the Courthouse. According to Plaintiff, Deputy Sloan backed up the van suddenly and crashed into a bus. Declaration of Justin Dobrowski ("Dowbrowski"), Doc. #22, at ¶ 3. He then allegedly complained about the injuries he sustained during the impact, but the two Marshals laughed at him. Id. ¶ 4. According to Deputy Sloan, the van's driver-side rear bumper locked with the passenger-side front bumper of the county bus while driving at a slow speed. Sloan Decl. ¶ 17-18; Supplemental Sloan Decl., Doc. #23-1, at ¶ 7. The USMS has no record of any prisoner reporting any injury as a result of this incident. Najera Decl. ¶ 11.
On October 4, 2010, the USMS received a Claim for Damage, Injury or Death ("Administrative Claim") from Plaintiff. Administrative Claim, Ex. A attached to Declaration of Gerald M. Auerbach ("Auerbach Decl."), Doc. #20-4, at 1. The USMS denied Plaintiff's Administrative Claim on April 26, 2011. Id. ¶ 7.
II. OPINION
A. Legal Standard
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") when a district court lacks subject matter jurisdiction over the claim. Fed. R. Civ. P. 12(b)(1). When a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of establishing subject matter jurisdiction. See Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1102, n.1 (9th Cir. 2007) ("Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence."). There are two permissible jurisdictional attacks under Rule 12(b)(1): a facial attack, where the court's inquiry is limited to the allegations in the complaint; or a factual attack, which permits the court to look beyond the complaint at affidavits or other evidence. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
If the moving party asserts a facial challenge, the court must assume that the factual allegations asserted in the complaint are true and must construe those allegations in the light most favorable to the plaintiff. Li v. Chertoff, 482 F. Supp. 2d 1172, 1175 (S.D. Cal. 2007) (citing United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1130-31 & n.1 (9th Cir. 1999) and Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)). If the moving party asserts a factual attack, the court "is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Id. (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039).
In resolving a factual attack, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air for Everyone, 373 F.3d at 1039 (citing Savage, 343 F.3d at 1039 n.2). Courts consequently need not presume the truthfulness of plaintiff's allegations. Id. (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). "Once the moving party has converted a motion to dismiss into a factual motion by presenting affidavits or other evidence properly before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. (quoting Savage, 343 F.3d at 1039 n.2).
However, "jurisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and the substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action." Safe Air for Everyone, 373 F.3d at 1039 (internal citations and quotations omitted). Jurisdiction and the merits of an action are intertwined where "a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Id. (internal citations and quotations omitted).
B. Discussion
1. Factual Attack of Subject Matter Jurisdiction
As a preliminary issue, the Court treats the pending Motion as a Rule 12(b)(1) motion to dismiss and not a motion for summary judgment because as noted above, under a factual attack of subject matter jurisdiction, a district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage, 343 F.3d at 1039.
2. Federal Tort Claims Act Discretionary Function
The United States argues that the Court lacks subject matter jurisdiction to hear Plaintiff's claim because the decision to use safety belts during inmate transport falls under the FTCA discretionary function exception. Plaintiff does not disagree, but contends that he is "only citing the lack of a seat belt as factor in his injury and not the cause of his injury." Opp. at 2.
The United States "is immune from suit save as it consents to be sued," and "the terms of its consent to be sued in any court define that court's jurisdiction." United States v. Sherwood, 312 U.S. 584, 586 (1941). Absent a statutory waiver of sovereign immunity, an action against the United States must be dismissed. Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990).
The FTCA provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment. See Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). Under the FTCA, the United States may be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). This waiver is limited by various exceptions, including the discretionary function exception, which provides immunity from suit for "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." See 28 U.S.C. § 2680(a). Several courts have held that the decision not to secure inmates with safety belts during transport is the type of policy choice shielded by the discretionary function exception of the FTCA. See Vinzant v. United States, 2:06-CV-10561, 2010 WL 1857277, at *1-2 (E.D. La. May 7, 2010) aff'd, 458 F. App'x 329 (5th Cir. 2012); Vinson v. U.S. Marshals Serv., CA 0:10-79-RMG, 2011 WL 3903199, at *3 (D.S.C. Sept. 2, 2011) aff'd, 459 F. App'x 221 (4th Cir. 2011); MacCaffray v. United States, No. 2:97-CV-403, 1998 WL 560047, at *2-3 (D.Vt. Aug.27, 1998).
Plaintiff does not seem to disagree that the USMS made a policy decision to exclude seat belts. See Opp. at 4; Reply at 3. However, Plaintiff argues that the alleged basis for liability is not the lack of a seat belt, but "(1) the selection of a gear before stepping on the gas and backing up without care, and (2) deciding to waive seeking medical attention for the passengers . . . ." Opp. at 2-3; see Opp. at 5 (stating that Plaintiff is not bringing this case for failure to use a seat belt but for negligent driving). In addition, Plaintiff states, "If there is a continuing issue regarding the seat belt reference, plaintiff will request to strike that limiting language from his Amended Complaint . . . ." Opp. at 5.
Plaintiff relies on MacCaffray v. United States, 2:97-CV-403, 1998 WL 560047, at *3-5 (D. Vt. Aug. 27, 1998), for the proposition that if a court dismisses a claim for lack of jurisdiction, the case may proceed on the other claims. The United States argues that MacCaffray is distinguishable because in that case, the plaintiff also had a Bivens claim, which Plaintiff here has not alleged. Although MacCaffray is distinguishable because Plaintiff has no other claim, the Court finds Vinzant v. United States, cited by the United States, illustrative of Plaintiff's argument. In Vinzant, the plaintiff prisoner claimed that the defendants were negligent under the FTCA because they failed to secure the prisoners with a seat belt and they operated the transport vans recklessly. Vinzant v. United States, 2:06-CV-10561, 2010 WL 1857277, at *1-2 (E.D. La. May 7, 2010) aff'd, 458 F. App'x 329 (5th Cir. 2012). The court held that the government's motion to dismiss the plaintiff's "claim regarding the marshals' failure to secure him with a safety belt will be GRANTED. The other alleged bases of liability under the FTCA suggested by [the plaintiff] in his complaint remain viable." Id. at *6. Here, like in Vinzant, Plaintiff has provided other bases of liability under the FTCA in the FAC: negligent driving and waiving medical treatment. See FAC ¶ 22.
Accordingly, to the extent that Plaintiff's negligence claim is based on the failure to secure him with a safety belt, Defendant's motion is granted. The Court does not grant leave to amend because the claim is not legally cognizable. However, the other alleged bases of liability under the FTCA suggested by Plaintiff remain viable.
3. Exhaustion of Administrative Remedies
The United States also argues that the Court lacks subject matter jurisdiction because Plaintiff failed to set forth a sum certain in his administrative claim. In the alternative, the United States argues the claim should be limited to $19,300 and the other language in the claim should be treated as surplusage. Plaintiff argues that he did state a sum certain because he provided a formula to calculate the sum.
To effectuate a proper claim pursuant to the FTCA, the claimant is required to state a sum certain. Caidin v. United States, 564 F.2d 284, 287 (9th Cir. 1977). "Since the purpose of the administrative claim is to facilitate settlement of these disputes, a specific dollar amount is necessary to allow realistic assessment of the settlement value of a case." Id. Failure to include a sum certain results in the case being treated "as if no administrative claim had ever been filed." Id. Both parties cite decisions from other circuits and other district courts. Of these cases, the Court finds Industrial Indemnity Co. v. United States, 504 F. Supp. 394, 397 (E.D. Cal. 1980), and Cuddy v. United States, 490 F. Supp. 390, 392 (D. Mont. 1980), to be on point and persuasive. In Industrial Indemnity, the plaintiff qualified his personal injury entry of $560.00 with an asterisk, which stated that his compensation benefits were continuing. 504 F. Supp. at 396. The court found that the administrative claim was valid, stating, "The plaintiff did in fact specify a sum certain in the claim, and the insertion of additional language by reason of the use of the asterisk will be treated as mere surplusage." Id. at 397. Similarly, in Cuddy, the plaintiff attached a letter that itemized his claim for his destroyed Caterpillar tractor, stating, "Total claim $36,253.00 plus $200.00 per day, 5 days per week until such time as cat is replaced or paid for." Cuddy, 490 F. Supp. at 391. The court held that although the loss of use during the period reasonably required to replace property is recoverable, the plaintiff failed to express this period as a "sum certain" in his administrative claim and therefore, the court limited the amount of the award to $36,253.00. Id. at 392-393.
Here, in Plaintiff's Administrative Claim under "Personal Injury," Plaintiff states, "For pain and suffering $100.00 per diem from 3-19-10 to time the pain stops??" Administrative Claim, Ex. A attached to Auerbach Decl., at 1. Under "Total," he states, "$100.00 per diem from 3-19-2010 to filing date only $19,300.00 and continuing till pain stops!" and $19,300.00 is circled. Id. Therefore, like the plaintiffs in Industrial Indemnity and Cuddy, Plaintiff's claim does contain a specific dollar amount, $19,300.00. However, the claim for $100.00 per diem until the pain stops lacks any certainty because, as the United States argues, it is unclear when Plaintiff's pain stopped or will stop. Plaintiff suggests that his per diem formula should be treated differently than the formula in Cuddy because an estimate generally for property damage can be achieved within the required statutory period. Opp. at 9. However, medical expenses are subject to the same sum certain requirements as property damage. See e.g., Blair v. I.R.S., 304 F.3d 861, 866 (9th Cir. 2002) (holding that the plaintiff's amount for wage loss was definite, but his statement about medical expenses, which stated that medical expenses were still being incurred, was not a definite statement, and therefore, it was treated as surplusage). Therefore, the Court finds that Plaintiff specified a sum certain of $19,300.00 and the additional language is surplusage.
Accordingly, Plaintiff's negligence claim against the United States is limited to $19,300.00.
III. ORDER
For the reasons set forth above, the Court GRANTS the United States' Motion to Dismiss for Lack Of Subject Matter Jurisdiction in part and DENIES in part. Plaintiff's negligence claim proceeds on the other two basis of liability under the FTCA and is capped at $19,300.00.
IT IS SO ORDERED.
_______________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE