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Murphy v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


April 22, 2009

DEVERON MURPHY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

Plaintiff is an inmate currently in the United States Penitentiary at Marion, Illinois; he filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680. Plaintiff alleges that on or about June 18, 2007, he was jogging in the recreation yard at Marion. He tripped and fell due to a large pothole, causing permanent damage to his left ankle. Plaintiff alleges that the pothole was the result of excavations performed in the yard, and the pothole was not marked or covered. He further alleges that he received insufficient medical treatment for his injury.

The FTCA permits an individual to bring suit in federal court 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 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). Pursuant to this provision, federal inmates may bring suit for injuries they sustain while incarcerated as a consequence of the negligence of prison officials. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). However, the plaintiff may not bring such a suit unless he has first presented his claim to the appropriate federal agency and that agency has denied the claim. 28 U.S.C. § 2675(a).

Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003). With his complaint, Plaintiff has submitted a copy of a denial of his claim filed with the Bureau of Prisons; thus, it appears that he has exhausted his administrative remedies with respect to this claim.

IT IS HEREBY ORDERED that Plaintiff shall complete and submit a USM-285 form for the ATTORNEY GENERAL of the UNITED STATES and the UNITED STATES ATTORNEY for the SOUTHERN DISTRICT OF ILLINOIS within THIRTY (30) DAYS of the date of entry of this Memorandum and Order. The Clerk is DIRECTED to send Plaintiff TWO (2) USM-285 forms with Plaintiff's copy of this Memorandum and Order. Plaintiff is advised that service will not be made on a defendant until Plaintiff submits a properly completed USM-285 form for that defendant.

The Clerk is DIRECTED to prepare a summons for the UNITED STATES OF AMERICA. The Clerk shall forward the summons, USM-285 forms submitted by Plaintiff, and sufficient copies of the complaint to the United States Marshal for service.

The Clerk is FURTHER DIRECTED to prepare a copy of the summons, a copy of the complaint, and a copy of this Order to be served by the United States Marshal on the ATTORNEY GENERAL of the UNITED STATES.

The United States Marshal is DIRECTED to serve the original summons and complaint on the UNITED STATES ATTORNEY for the SOUTHERN DISTRICT OF ILLINOIS, and a copy of the summons and complaint on the ATTORNEY GENERAL of the UNITED STATES.

IT IS FURTHER ORDERED that Plaintiff shall serve upon the United States Attorney for the Southern District of Illinois, a copy of every further pleading or other document submitted for consideration by this Court. He shall include, with the original paper to be filed with the Clerk of the court, a certificate stating the date that a true and correct copy of any document was mailed to the United States Attorney. Any paper received by a district judge or magistrate which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court.

IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this cause is referred to a United States Magistrate Judge for further pre-trial proceedings.

IT IS FURTHER ORDERED that this entire matter be referred to a United States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.

Plaintiff is under a continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs.

IT IS SO ORDERED.

J. Phil Gilbert U. S. District Judge

20090422

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