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Michael Veysada v. the United States of America

June 28, 2012

MICHAEL VEYSADA, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is granted in its entirety.

BACKGROUND

Plaintiff Michael J. Veysada (Veysada) alleges that in October 2009, he was an inmate of the United States Federal Bureau of Prisons. On October 14, 2009, Veysada was allegedly being held at the United States Metropolitan Correctional Center (MCC) and was working in the prison kitchen facility. Veysada contends that the floor area in the kitchen facility had divots or holes in the flooring and was in disrepair. According to Veysada, because of the flooring condition, a cart with pans of cooked chickens overturned and poured hot oil and grease on Veysada (Accident). Veysada also contends that after the Accident, prison officials failed to preserve or document the Accident area, and failed to complete an injury report or accident investigation. Veysada includes in his amended complaint state law negligence claims (Count I), and a spoliation of evidence claim (Count II). Defendants now move to dismiss all claims.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).

DISCUSSION

Defendants argue that the negligence claims are barred under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. Defendants also argue that the spoliation claim should be dismissed since it is premised on the negligence claims.

I. Negligence Claims

Defendants argue that Veysada's exclusive remedy for his state common law negligence claims is under the FTCA and that the claims are untimely.

A. Exclusive Remedy

Pursuant to 28 U.S.C. ยง 1346(b)(1), generally, "the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury . . . 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." Id. In the instant action, Veysada alleges that he suffered an injury due to the ...


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