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Delarosa v. United States

United States District Court, N.D. New York

September 22, 2014

Lizamaris Delarosa, Plaintiff,
v.
United States of America, AUSA Craig Nolan, ATF S/A Thomas M. Jusianiec, and T.F.O. Thomas McCoy, Defendants.

Lizamaris Delarosa Schenectady, New York Plaintiff, pro se.

Hon. Richard S. Hartunian, United States Attorney, Charles E. Roberts, Esq., Assistant United States Attorney, Syracuse, New York, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

INTRODUCTION

In this pro se action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80, plaintiff seeks relief for defendants' alleged wrongful conduct during the investigation and prosecution of her husband, Noel Delarosa. On the Government's motion, the Court issued a decision (Dkt. No. 29) dismissing all claims against Assistant United States Attorney Craig Nolan, dismissing some but not all Bivens claims against Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agent Thomas M. Jusianiec and Task Force Officer Thomas McCoy, and allowing plaintiff to proceed on three FTCA claims: a false arrest claim based on allegations that Agent Jusianiec and Officer McCoy unreasonably detained plaintiff at her residence during a seizure of a vehicle on August 29, 2010; a false arrest claim based on allegations that Agent Jusianiec and Officer McCoy wrongfully detained plaintiff at her place of business on September 20, 2010; and a trespass claim based on allegations that Agent Jusianiec and Officer McCoy unlawfully searched her place of business on February 1, 2011.

Thereafter, the Court gave the Government leave to move for summary judgment limited to the issue of whether the FTCA claims should be dismissed on the ground of plaintiff's failure to exhaust her administrative remedies as required by the FTCA, 28 U.S.C. § 2675(a). That motion is now before the Court (Dkt. No. 48). As set forth below, the Court grants the motion in its entirety and dismisses plaintiff's FTCA claims for lack of subject-matter jurisdiction.

APPLICABLE LAW

Summary judgment is appropriate when there is no genuine issue with regard to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Stated otherwise, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When deciding a summary judgment motion, the Court must "resolve all ambiguities and draw all factual inferences in favor of the party opposing the motion." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Where, as here, the nonmovant is proceeding pro se, the Court must read that party's papers liberally and interpret them "to raise the strongest arguments that they suggest." Id. (citation omitted).

"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). In the FTCA, the United States consents to "be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances[.]" 28 U.S.C. § 2674. This limited consent "operates subject to numerous conditions, each of which must be satisfied for a court to exercise jurisdiction." Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004). "One such condition is that a plaintiff must first file an administrative claim with the appropriate federal agency before suing for relief in federal court." Id. The administrative exhaustion requirement is set forth in 28 U.S.C. § 2675(a) as follows:

An action shall not be instituted upon a claim against the United States for money damages 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 Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

"[B]ecause the FTCA constitutes a waiver of sovereign immunity, the procedures set forth in Section 2675 must be adhered to strictly." Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983). The required procedures "appl[y] equally to litigants with counsel and to those proceeding pro se. " Adeleke, 355 F.3d at 153.

A notice of claim under section 2675(a) must be "specific enough to serve the purpose of the FTCA to enable the federal government to expedite the fair settlement of tort claims." Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998). Therefore, the notice of claim must be in writing and "must provide enough information to permit the agency to conduct an investigation and to estimate the claim's worth." Id. (citing Keene Corp., 700 F.2d at 842).

A statute of limitations applies to FTCA claims as follows:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of ...

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