United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion to
dismiss, or in the alternative, for summary judgment (DE 25),
filed pursuant to Federal Rules of Civil Procedure 12(b)(6)
and 56. Plaintiff did not respond to the motion. In this
posture, the issues raised are ripe for decision.
November 28, 2016, plaintiff, a federal inmate proceeding pro
se, filed this negligence action pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671-2680. Plaintiff alleges he was a passenger in a
Bureau of Prisons transport van that backed into a concrete
post, and that he sustained serious back injuries in the
accident. Plaintiff requests compensatory damages and
unspecified equitable relief.
10, 2017, the court conducted its frivolity review of
plaintiff's complaint and allowed the matter to proceed.
Defendant filed answer on August 22, 2017, denying
plaintiff's allegations and asserting various affirmative
defenses. On September 29, 2017, the court entered case
management order governing discovery and dispositive motions
practice. Plaintiff did not take any discovery during the
four-month discovery period. On January 24, 2018, plaintiff
filed a motion requesting an indefinite stay of all
proceedings while he attempted to retain counsel, which the
court subsequently denied.
17, 2018, defendant filed the instant motion to dismiss or in
the alternative for summary judgment. In support of the
motion, defendant filed memorandum of law, statement of
material facts, and appendix, which included certain of
defendant's written discovery requests and
28, 2018, the court provided plaintiff notice of the instant
motion pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975). The Roseboro notice explained
plaintiff's right to respond to the motion, and the
deadline for doing so. The notice also provided the following
Your response must comply for [sic] Rule 56 of the Federal
Rules of Civil Procedure . . . . In summary, you cannot rely
only on the complaint or other pleadings to defeat a motion
for summary judgment, if the defendants properly meet their
burden under Rule 56. Instead, you must respond to the motion
with affidavits (written statements signed before a notary
public and under oath); declarations (written statements
bearing a certificate that the statement is signed under
penalty of perjury), or other evidence in such a manner so as
to persuade the court that a genuine issue of material fact
remains to be determined, and that the case should proceed to
trial or evidentiary hearing.
(DE 30 at 1). Despite this notice, plaintiff failed to
respond to the instant motion.
Standard of Review Summary judgment is appropriate when there
exists no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477
U.S. 242, 247 (1986). The party seeking summary judgment
bears the burden of initially coming forward and
demonstrating an absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has met its burden, the nonmoving party
“may not rest upon the mere allegations or denials of
his pleading” but “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248-49; see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The nonmoving party thus “bears
the burden of showing, by means of affidavits or other
verified evidence, that [a] genuine dispute of material fact
exists.” Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 522 (4th Cir. 2003). There is no
issue for trial unless there is sufficient evidence favoring
the non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
brings this negligence action under the FTCA, which provides
for a limited waiver of the United States' sovereign
immunity for certain torts committed by federal employees.
Kerns v. United States, 585 F.3d 187, 194 (4th Cir.
2009); see also FDIC v. Meyer, 510 U.S. 471, 475
(1994). The FTCA provides that the United States is liable
for negligent acts of federal employees only to the extent
that “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).
Therefore, a plaintiff “has an FTCA cause of action
against the government only if she would also have a cause of
action under state law against a private person in like
circumstances.” Miller v. United States, 932
F.2d 301, 303 (4th Cir. 1991).
alleged injury occurred in North Carolina, and thus North
Carolina tort law governs plaintiff's claim. 28 U.S.C.
§ 1346(b)(1); Miller, 932 F.2d at 303. Under
North Carolina law, a negligence claim requires proof of
“(1) a legal duty; (2) a breach thereof; and (3) injury
proximately caused by the ...