Anderson v. United States of America
MEMORANDUM OPINION ADOPTING and ACCEPTING 14 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Judge Virginia Emerson Hopkins on 11/9/2015. (JLC)
2015 Nov-09 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DOROTHY LEE ANDERSON,
UNITED STATES OF AMERICA,
) Case No: 7:14-cv-01607-VEH-SGC
The magistrate judge entered a report and recommendation on October 22,
2015, recommending that this action filed pursuant to the Federal Tort Claims Act
(FTCA) be DISMISSED WITHOUT PREJUDICE for lack of subject matter
The plaintiff filed objections to the report and
recommendation on October 30, 2015. (Doc. 15).
In her objections, the plaintiff asks this court to reject the magistrate judge’s
recommendation that her FTCA complaint be dismissed as premature because it was
filed less than six months from the date she filed her administrative tort claim. (Doc.
15 at 1). The plaintiff states she did not understand the requirement to wait six
months to file a FTCA claim and points out that the prescribed time has now passed.
(Id. at 3-4). The plaintiff also states her mistaken understanding that she was required
to exhaust the Bureau of Prisons’ internal administrative remedies, or grievance
process, as a prerequisite to filing her FTCA complaint. (Id. at 2-3). Finally, the
plaintiff points out the magistrate judge’s denial of her motion for appointment of
counsel. (Id. at 1).
The plaintiff’s lack of counsel, misunderstanding of the exhaustion procedure
required before filing a FTCA claim, and suggestion that her complaint be
adjudicated because more than six months now has passed since she filed her
administrative claim are unpersuasive. “Even a pro se litigant is required to comply
with the rules of procedure.” Lacroix v. W. Dist. of Kentucky, No. 14-15276, 2015
WL 5673018, at *2 (11th Cir. Sept. 28, 2015) (citing McNeil v. United States, 508
U.S. 106, 113 (1993)). The language of 28 U.S.C. § 2675(a) is such that a “lay
person” who “carefully read the entire section would understand it to mean exactly
what it says.” Mohasco Corp. v. Silver, 447 U.S. 807, 827 (1980). This court must
strictly adhere “to the procedural requirements specified by the legislature” in 28
U.S.C. § 2675(a) and will not interpret it “so as to excuse mistakes by those who
proceed without counsel.” Id. at 825-826.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the court
is of the opinion that the magistrate judge’s report is due to be and is hereby
ADOPTED and the recommendation is ACCEPTED. Accordingly, the plaintiff’s
prematurely filed FTCA complaint is due to be DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
A Final Judgment will be
VIRGINIA EMERSON HOPKINS
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?