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Cook v. United States

United States District Court, D. South Carolina

November 16, 2015

Darryl L. Cook, Plaintiff,
v.
United States of America, Defendant.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

The plaintiff, Darryl L. Cook, a self-represented federal prisoner, filed this civil action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 ("FTCA"). This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion for summary judgment. (ECF No. 43.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Cook of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendant's motion. (ECF No. 44.) Cook filed a response and supplemental response in opposition to the motion. (ECF Nos. 46 & 47.) Having reviewed the parties' submissions and the applicable law, the court finds that the case should be dismissed for lack of subject matter jurisdiction.

BACKGROUND

Cook alleges that he is a "chronic care inmate whose colon cancer is in a remissive state." (Compl. at 3, ECF No. 1 at 3.) In June of 2013, Cook alleges that he received medical bills, forwarded to him by his mother, which were marked "past due." (Id.) Cook further states that the bills had been "placed in the care of [a] law office... for collection." (Id.) Cook asserts that, in October of 2013, medical bills continued to be sent directly to him, or to his mother's residence in Alabama. (Id.) Cook alleges that medical bills are being redirected "in an effort to retaliate" and that the defendant's actions constitute "negligent defamation on [Cook's] personal credit report." (Id. at 5-6.) Cook seeks monetary damages. (Id. at 7.)

DISCUSSION

A. Applicable Standards

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) examines whether the pleading fails to state facts upon which jurisdiction can be founded. It is the petitioner's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

In situations where a defendant alleges a lack of subject matter jurisdiction over an claim brought pursuant to the FTCA, the United States Court of Appeals for the Fourth Circuit has held that a district court should dismiss "the [FTCA] suit for want of jurisdiction under Rule 12(b)(1) if the United States is not liable for [the plaintiff's] injury." Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). However, in cases where the jurisdictional "issue is intertwined with the merits of the FTCA claim, " a Rule 12(b)(1) dismissal is inappropriate and the summary judgment standard should be used. Kerns v. United States, 585 F.3d 187, 196 (4th Cir. 2009) (noting that Rule 12(b)(1) dismissal is appropriate in cases, such as Williams, where the threshold issue of whether an actor is an employee or independent contractor is "wholly unrelated to the basis for liability under the FTCA").[1]

B. Federal Tort Claims Act

Cook has expressly filed this action pursuant to the FTCA, which provides for a limited waiver of the Government's sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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)(1). Because the FTCA includes a limited waiver of the Government's immunity as a sovereign, the statute is to be strictly construed and its requirements strictly met.[2] See Welch v. United States, 409 F.3d 646, 650-51 ...


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