(PS) Shaughnessy v. Brady et al, No. 2:2010cv01534 - Document 8 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 10/1/2010 RECOMMENDING 4 that defendant's motion to dismiss for lack of jurisdiction be granted; Referred to Judge Frank C. Damrell, Jr.; Objections due 14 days after being served with these F & R's. (Reader, L)
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(PS) Shaughnessy v. Brady et al Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROSANNE SHAUGHNESSY, 11 Plaintiff, 12 13 No. CIV 10-1534 FCD KJM PS vs. UNITED STATES OF AMERICA, 14 FINDINGS AND RECOMMENDATIONS Defendants. 15 / 16 Defendant’s motion to dismiss was submitted on the papers. Upon review of the 17 documents in support, no opposition having been filed,1 and good cause appearing, THE COURT 18 FINDS AS FOLLOWS: 19 In this action, plaintiff alleges tort claims arising out of a citation issued to her by 20 an employee of the United States Forest Service. The United States is the only appropriate 21 defendant and was substituted in on behalf of the named Forest Service employee defendants. 22 See 28 U.S.C. § 2679(d). 23 ///// 24 1 25 26 Plaintiff failed to timely file opposition. By order filed August 25, 2010, plaintiff was afforded additional time to file opposition and cautioned that failure to file opposition would be deemed as a statement of nonopposition. The additional time to file opposition expired on September 22, 2010. 1 Dockets.Justia.com 1 Plaintiff’s claims lie under the Federal Tort Claims Act (“FTCA”). There is no 2 evidence that plaintiff has complied with the administrative requirements of presentation and 3 exhaustion required under the FTCA. See 28 U.S.C. § 2675(a). Plaintiff was granted additional 4 time to file opposition and has failed to submit any evidence that she has exhausted her 5 administrative remedies. As such, this court lacks jurisdiction over this action. Vacek v. United 6 States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (exhaustion requirement jurisdictional 7 and must be interpreted strictly). 8 9 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss for lack of jurisdiction be granted. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 12 fourteen days after being served with these findings and recommendations, any party may file 13 written objections with the court and serve a copy on all parties. Such a document should be 14 captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the 15 objections shall be served and filed within seven days after service of the objections. The parties 16 are advised that failure to file objections within the specified time may waive the right to appeal 17 the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: October 1, 2010. 19 20 21 22 23 24 25 006 26 shaughnessy.57 2
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