Ramage v. United States

• Decision Date: 19 September 2014
• Docket Number: No. CIV 14-2132-TUC-CKJ,CIV 14-2132-TUC-CKJ
• Parties: DANIEL RAMAGE, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
• Court: U.S. District Court — District of Arizona

DANIEL RAMAGE, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

No. CIV 14-2132-TUC-CKJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

September 19, 2014

ORDER

On June 5, 2014, Plaintiff Daniel Ramage filed a Complaint alleging claims pursuant to the Federal Tort Claims Act ("FTCA") and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), against the United States of America ("the United States"), the Federal Bureau of Prisons ("BOP"), Officer Gomez ("Gomez"), Officer Jackshaw ("Jackshaw"), Officer Mendoza ("Mendoza"), Warden FCI Phoenix ("the Warden"), and 1-10 Unknown Defendants. Ramage has also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2).

In Forma Pauperis

Ramage has filed an Application to Proceed Without Prepaying Fees or Costs (Doc. 2) contemporaneously with the Complaint. The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that whe "is unable to pay such fees[.]" 28 § 1915(a)(1). A review of Ramage's Supporting Information indicates that

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Ramage is unable to pay the fees. The Court will grant the request.

Screening Order

This Court is required to dismiss a case if the Court determines that the allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 § 1915(e)(2)(B). The Court must, therefore, screen Ramage's Complaint.

General Requirements

A complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Rule 8(a), Fed.R.Civ.P. Dismissal of a complaint is appropriate if there is a (1) "lack of a cognizable legal theory" or (2) "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Especially where the pleader is pro se, the pleading should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 1975). Nonetheless, a complaint must set forth a set of facts that serves to put defendants on notice as to the nature and basis of the claim(s). Furthermore, all allegations of a claim are to be set forth in numbered paragraphs that should be limited to a single set of circumstances. Rule 10(a), Fed.R.Civ.P. "Each claim . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth." Id. Failure to set forth claims in such a manner places the onus on the court to decipher which, if any, facts support which claims, as well as to determine whether a plaintiff is entitled to the relief sought. Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (D.C.Va. 1981). Enforcement of this rule is discretionary with the Court, but such enforcement is appropriate where it is necessary to facilitate a clear presentation of the claims. See, Benoit v. Ocwen Financial Corp., Inc., 960 F.Supp. 287 (S.D.Fla. 1997), affirmed 162 F.3d 1177 (compliance with rule required where allegations were so confusing

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and conclusory, claims were commingled, and impossible to determine nature of claims).

If a court determines that dismissal is appropriate, a plaintiff must be given at least one chance to amend a complaint when a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Moreover, when dismissing with leave to amend, a court is to provide reasons for the dismissal so a plaintiff can make an intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987).

Requirement that Action State a Claim on Which Relief Can be Granted

The United States Supreme Court has found that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its facts." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Id. at 1964-65; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss[.]"). Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to relief "rather than a blanket assertion" of entitlement to relief. Id. at 1965 n. 3. The complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right to action." Id. at 1965. The Court screens the Complaint in light of Twombly and must determine if Ramage has "nudge[d] his claims across the line from conceivable to plausible." Id. at 1974. The Court also considers that the Supreme Court has cited Twombly for the traditional proposition that "[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardue, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 929 (2007). Indeed, Twombly requires "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such

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amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a complaint to survive a motion to dismiss, the non-conclusory "factual content," and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief).

This Court must take as true all allegations of material fact and construe them in the light most favorable to Ramage. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds, in attempting to decipher a complaint.

Count I - Negligence - FTCA

The United States is the only proper defendant in an action brought pursuant to the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2679(a) and (b); Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984). Thus, the Court will dismiss this claim against all Defendants except the United States.

Under the statutory procedure set forth in 28 U.S.C. § 2675(a), a "tort claimant may not commence proceedings in court against the United States without first filing his claim with an appropriate federal agency and either receiving a conclusive denial of the claim from the agency or waiting for six months to elapse without a final disposition of the claim being made." Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992); Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974). The Ninth Circuit Court of Appeals has "repeatedly held that this 'claim requirement of section 2675 is jurisdictional in nature and may not be waived.'" Jerves, 966 F.2d at 519 (quoting Burns v. United States, 764 F.2d 722,

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724 (9th Cir. 1985)). Ramage alleges an administrative review was conducted and the claim was denied. Considering processing, reviewing, and mailing times, it appears on the face of the Complaint that Ramage timely filed an administrative claim to a federal agency as required by 28 U.S.C. § 2675.¹

An action under the FTCA is a civil action against the United States, "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 federal government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b). The FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, waives the sovereign immunity of the United States for certain torts committed by federal employees. FDIC v. Meyer, 510 U.S. 471 (1994).

"As the terms of the [Federal Tort Claims] Act expressly provide, the substantive law of the place where the allegedly negligent act or omission occurred governs suits brought against the United States under the FTCA." Miller v. United States, 945 F.2d 1464, 1466 (9th Cir. 1991); see also, 28 U.S.C. 2674. The FTCA provides a waiver of sovereign immunity for tortious acts of a federal agency's employees only if the same torts committed by that person in the employ of a private party would have given rise to liability under state law. 28 U.S.C. § 1346(b).

Under the Federal Tort Claims Act, Congress authorized suits against the United...