JOHNSON BY JOHNSON v. United States, No. 84 C 1406.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation594 F. Supp. 728
Decision Date10 October 1984
PartiesMelissa JOHNSON, an infant by Barbara JOHNSON, her mother and natural guardian and Barbara Johnson, Plaintiffs, v. UNITED STATES of America, Defendant.
Docket NumberNo. 84 C 1406.

594 F. Supp. 728

Melissa JOHNSON, an infant by Barbara JOHNSON, her mother and natural guardian and Barbara Johnson, Plaintiffs,
v.
UNITED STATES of America, Defendant.

No. 84 C 1406.

United States District Court, E.D. New York.

October 10, 1984.


594 F. Supp. 729

Richard Frank, P.C., New York City, for plaintiffs.

Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Kevin P. Simmons, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for defendant.

NICKERSON, District Judge.

Plaintiffs filed this complaint pursuant to the Federal Tort Claims Act (the Act), 28 U.S.C. § 1346(b), alleging that the negligent supervision of government employees caused their injuries. Defendant brings this motion to dismiss and for summary judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure on grounds of sovereign immunity. Because it lacks subject matter jurisdiction, the court does not reach the merits of defendant's motion.

The Act permits suits against the government for certain torts committed by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). However, the Act requires the presentation of a claim to the appropriate federal agency and a final denial of that claim as a prerequisite to starting an action in federal court. 28 U.S.C. § 2675(a).

Plaintiffs filed a complaint on Standard Form 95 with the United States Postal Service. Their complaint alleged that because of acts occurring on "6/3/82 and various dates prior thereto" the plaintiffs suffered personal injuries. Paragraph 11 of Standard Form 95 asks for a description of the accident including "all known facts and circumstances attending the damage, injury, or death, identifying persons and property involved and the cause thereof." Plaintiffs completed Paragraph 11 as follows: "Melissa Johnson was sexually molested, assaulted, and, on information and belief, sodomized and threatened by Postman Luis Ojeda. Barbara Johnson sustained damage for medical and psychological treatment and loss of services."

The Postal Service denied plaintiffs' claims, first, because the incident described "occurred while Mr. Ojeda was acting outside the scope of his employment." Second, the agency denied the claim stating that:

The incident you describe as the basis of your claim is an assault and battery. While Congress has generally waived the Government's immunity for certain wrongful acts of its employees commited (sic) within the scope of their employment, Congress has specifically provided, in 28 U.S.C. 2680(h), that the Government's immunity from suit and from considering claims for personal injury has
594 F. Supp. 730
not been waived for any claim arising out of an assault and battery.

Plaintiffs then brought this action. Plaintiffs' complaint does not allege assault and battery. While it alleges that Ojeda sexually molested,...

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8 practice notes
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...Judge: Barbara and Melissa Johnson, mother and daughter respectively, appeal from a judgment of the Eastern District of New York, 594 F.Supp. 728, Eugene H. Nickerson, Judge, dismissing their claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b),......
  • Gonzagowski v. United States, No. CIV 19-0206 JB\LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 1, 2020
    ...assault and battery did not provide not sufficient notice of medical malpractice allegation); Johnson by Johnson v. United States, 594 F. Supp. 728 (E.D.N.Y. 1984) (Nickerson, J.)(holding that an administrative claim alleging of sexual assault did not give sufficient notice that the plainti......
  • Miles v. Bell, Civ. A. No. B-79-137 (TFGD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 28, 1985
    ...National Assoc. of Flood Insurers, 520 F.2d at 19-20; Rogers v. United States, 568 F.Supp. 894 (E.D.N.Y.1983); Johnson v. United States, 594 F.Supp. 728 (E.D.N.Y. 1984); Kantor v. Kahn, 463 F.Supp. 1160; Luria v. Civil Aeronautics Board, 473 F.Supp. 242, 244 (S.D.N.Y.1979). But see Blue v. ......
  • State Farm Mut. Auto. Ins. Co. v. U.S., No. CV-03-162 (NGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 23, 2004
    ...the thousands of suits presented to it. Keene, 700 F.2d at 842. The defendant also relies on Johnson ex rel. Johnson v. United States, 594 F.Supp. 728, 730 (E.D.N.Y.1984), aff'd on other grounds, 788 F.2d 845 (2d Cir.1986). However, the Second Circuit reversed the district court's decision ......
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8 cases
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...Judge: Barbara and Melissa Johnson, mother and daughter respectively, appeal from a judgment of the Eastern District of New York, 594 F.Supp. 728, Eugene H. Nickerson, Judge, dismissing their claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b),......
  • Gonzagowski v. United States, No. CIV 19-0206 JB\LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 1, 2020
    ...assault and battery did not provide not sufficient notice of medical malpractice allegation); Johnson by Johnson v. United States, 594 F. Supp. 728 (E.D.N.Y. 1984) (Nickerson, J.)(holding that an administrative claim alleging of sexual assault did not give sufficient notice that the plainti......
  • Miles v. Bell, Civ. A. No. B-79-137 (TFGD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 28, 1985
    ...National Assoc. of Flood Insurers, 520 F.2d at 19-20; Rogers v. United States, 568 F.Supp. 894 (E.D.N.Y.1983); Johnson v. United States, 594 F.Supp. 728 (E.D.N.Y. 1984); Kantor v. Kahn, 463 F.Supp. 1160; Luria v. Civil Aeronautics Board, 473 F.Supp. 242, 244 (S.D.N.Y.1979). But see Blue v. ......
  • State Farm Mut. Auto. Ins. Co. v. U.S., No. CV-03-162 (NGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 23, 2004
    ...the thousands of suits presented to it. Keene, 700 F.2d at 842. The defendant also relies on Johnson ex rel. Johnson v. United States, 594 F.Supp. 728, 730 (E.D.N.Y.1984), aff'd on other grounds, 788 F.2d 845 (2d Cir.1986). However, the Second Circuit reversed the district court's decision ......
  • Request a trial to view additional results

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