and that exhibits reflecting such filing would be provided to the Court "as soon as they are gathered for submission," (see Pl.s' Opp. at 12:6-16), plaintiffs have failed to provide such documentation, despite having had ample time to do so.
Accordingly, plaintiffs having neither pleaded nor presented evidence of compliance with the required procedures under the FTCA, and defendants having presented evidence that such procedures were not followed, plaintiffs' claims against the federal defendants under the FTCA are DISMISSED without prejudice for lack of jurisdiction.
CONCLUSION
For the reasons expressed above, all claims as against all of the federal defendants are hereby DISMISSED without leave to amend.
This order closes Docket #s 96 and 117.
IT IS SO ORDERED.
Dated: OCT 31 2001
MAXINE M. CHESNEY
United States District Judge
[ENDNOTES]
1 All of the individual defendants are employees of the Department of Labor. The Court understands the motion to be made on behalf of the Department of Labor and Alexis Herman Secretary of the Department of Labor, as well.
2 Plaintiffs filed their opposition to the Federal Defendants' motion on March 27, 2001, eleven days after opposition to the motion was due. See Civ. L. R.7-3. In their opposition, plaintiffs, appearing pro se, explain, but have not shown good cause for, their untimely submission. Nonetheless, the Court has considered the opposition.
3 Plaintiffs seek to enjoin the proceedings before the DOL. (See Compl. ¶¶ 108-109.)
4 The five defendants are: Rex Scatina, Dennis Babcock, Mr. O'Laughlin, David Walker, Controller General, and Lawrence Sumnor, Secretary of the Treasury.
5 The Court takes judicial notice of the following facts taken from documents filed with the Department of Labor. See Mack v. South Bay Beer Distributors. Inc., 798 F.2d 27 1279, 1282 (9th Cir. 1986) (holding court may take judicial notice or records and reports of administrative bodies), abrogated on other grounds by Astoria Federal Savings and Loan Ass'n. v. Solimino, 510 U.S. 104 (1991).
6 In June 1986, Triple A and Tom Olsen agreed to settle Triple A's liability for Tom Olsen's past and future medical benefits for a lump sum payment in the amount of $34,300, (see Reinhalter Decl. Ex. 3.)
7 Olsen also sought an order from the Ninth Circuit directing the DOL to provide him. legal representation under the LHWCA. (See id. Ex. 15.)
8 On December 1, 2000, plaintiffs filed with this Court, a motion seeking an order directing District Director Williams to provide Tom Olsen with medical treatment and to further assist him in the processing and/or filing of claims for "consequential injury" under the LHWCA. By order dated December 21, 2000, the Court denied the motion on the grounds that the Court lacked jurisdiction to grant such relief given the LHWCA's extensive provisions for review of the District Director's actions by the ALJ, the BRB, and, ultimately, the Ninth Circuit Court of Appeals.
9 Plaintiffs' claims do not involve a facial challenge to the LHWCA itself, but rather, its application in this particular case. See Kreshollek, 78 F.3d at 874 (distinguishing between facial challenges to provisions of LHWCA and challenges to their application in particular cases).
10 All of the federal defendants, save defendant Stout, have been sued solely in their official capacities. Defendant Stout has been sued in both her official and individual capacities. (See Compl. at ¶ 15.)
11 Section 1988(a) "instructs federal courts as to what law to apply in causes of action arising under federal civil rights acts" but does not create an independent cause of action. See Moor v. County of Alameda, 411 US. 693, 703-04, n.17 (1973); Hershey v. California State Humane Society, 1995 WL 492626 at *8 (N.D. Cal. 1995). Section 1988(b) authorizes the court to award attorney's fees to the prevailing party. Pro se litigants, however, cannot recover attorney fees under § 1988(b). See Kay v. Ehrler, 499 U.S. 432, 435 (1991); Hershey, 1995 WL 492626 at *9. Accordingly, plaintiffs fail to state claim under §1988 as well.
12 As noted, § 1988 is derivative of §§ 1981, 1983, 1985 and 1986.
13 Moreover, to the extent plaintiffs' claims against Stout are premised on her having accepted a "bribe" in exchange for providing plaintiffs' address to an opposing party, (see Compl. ¶ 78), plaintiffs, whose allegations in that regard are based on hearsay, (see id.) have not introduced admissible evidence to rebut Stout's direct evidence to the contrary. (see Declaration of Rose M. Stout ¶ 14.) Accordingly, plaintiffs have failed to raise a triable issue of material fact as to any such claim and Stout is entitled to summary judgment thereon.
14 As discussed above, plaintiffs also rely on the ADA and Rehabilitation Act as a basis for their claims for injunctive relief; as noted, the Court lacks jurisdiction over plaintiffs' claims for injunctive relief as well.
15 Plaintiffs do not indicate whether any such claim was filed before or after the filing of the instant action.