Turner v. Zickefoose et al
RULING granting 51 Renewed Motion to Dismiss, Signed by Judge Dominic J. Squatrito on 4/13/11. (Blue, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HOPE A. TURNER
No. 3:08CV1180 (DJS)
RULING ON RENEWED MOTION TO DISMISS
The plaintiff, Hope A. Turner, filed this action in the
United States District Court for the Northern District of Florida
on May 6, 2008.
On June 13, 2008, United States District Judge
Stephan P. Mickle of that district issued an Order transferring
the complaint to the District of Connecticut.
The case was
received in the District of Connecticut on August 8, 2008.
The caption of the complaint included the following
defendants: the Federal Correctional Institution in Danbury,
Connecticut (“FCI Danbury”), Warden Zickefoose, Lieutenant Gussik
and Correctional Officers Kulp and Dematteo1.
that Warden Zickefoose, Lieutenant Gussak and Correctional
Officers Kulp and DeMatteo, employees at FCI Danbury, had failed
to protect her from assault by other inmates on December 13,
Although the Complaint refers to defendants “Gussik” and “Dematteo,”
defendants’ counsel refers to these defendants as “Gussak” and “DeMatteo.”
The Court will refer to these defendants as Gussak and DeMatteo.
On January 23, 2009, the Court issued an Initial Review
Decision and Order, construing the complaint as filed pursuant to
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)
(“Bivens”) and the Federal Tort Claims Act (“FTCA”), dismissing
all claims for damages against defendants Zickefoose, Gussak,
Kulp and DeMatteo in their official capacities pursuant to 28
U.S.C. § 1915A(b)(2) and permitting the claims for injunctive
relief against defendants Zickefoose, Gussak, Kulp and DeMatteo
in their official capacities to proceed.
(Dkt. # 17.)
On July 10, 2009, the Court granted the defendants’ motion
to substitute the Unites States of America with regard to the
FTCA claim and directed the Clerk to substitute the United States
of America for any and all claims against FCI Danbury.
On April 28, 2010, the Court granted the defendants’ motion
to dismiss as to the plaintiff’s Bivens claims against the
individual defendants and denied that motion as to the
plaintiff’s FTCA claim against the United States.
(Dkt. # 50.)
Now pending before the Court is the defendant’s renewed motion to
dismiss the FTCA claim.
That motion asserts, among other things,
that the Court lacks subject-matter jurisdiction over the
plaintiff’s FTCA claim because the plaintiff did not file her
claim within the time limit imposed by the applicable statute of
Because the Court agrees that the claim is barred
by the six month statute of limitations, defendant’s renewed
motion to dismiss (dkt. # 51) is GRANTED.
STANDARD OF REVIEW
The defendant’s renewed motion to dismiss is brought
pursuant to Fed. R. Civ. P. 12(b)(1), which authorizes motions
contesting subject-matter jurisdiction.
Although the Court has
previously ruled on a motion to dismiss filed by the defendant,
the Court recognizes that “subject-matter jurisdiction, because
it involves a court’s power to hear a case, can never be
forfeited or waived.
Moreover, courts . . . have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (internal
quotation marks and citation omitted).
jurisdiction is challenged, “the district court may examine
evidence outside of the pleadings to make this determination.”
Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008).
federal court concludes that it lacks subject-matter
jurisdiction, the court must dismiss the complaint in its
Arbaugh, 546 U.S. at 514.
In ruling on the defendant’s initial motion to dismiss, the
Court concluded that the plaintiff’s FTCA claim was not deemed “a
claim against the United States within the meaning of the FTCA’s
exhaustion requirement” until the Attorney General certified in
June 2009 that the federal employees originally named as
defendants were acting within the scope of their employment at
the time of the incident in question. (Dkt. # 50, at 17-19.)
Court noted that “[b]ecause plaintiff’s claim had not yet been
finally denied by the Bureau of Prisons at the time she commenced
this action [on May 6,2008], the exhaustion requirement would
have deprived this Court of jurisdiction over any FTCA claim
against the United States” had the FTCA been deemed a claim
against the United States at the time this action was commenced.
(Dkt. # 50, at 17.)
In its renewed motion to dismiss, the defendant again argues
that the substitution of the United States relates back to the
date the complaint was filed, and that, as a result, the FTCA
exhaustion requirement deprives this Court of subject-matter
jurisdiction over plaintiff’s FTCA claim. In the alternative, the
defendant argues that if the substitution of the United States
does not relate back to the date the complaint was filed, the
complaint is barred by the FTCA six month statute of limitations.
The Court has already concluded that, for purposes of the
FTCA exhaustion requirement, the plaintiff’s FTCA claim was not
deemed an action “against the United States” until the Attorney
General filed his certification in June 2009.
It would defy
logic to conclude that the plaintiff’s FTCA claim could not be
deemed an action against the United States prior to June 2009 for
purposes of the FTCA exhaustion requirement, but could be deemed
an action against the United States at an earlier date for
purposes of the applicable statute of limitations.
with the Court’s previous determination, the plaintiff’s FTCA
action “against the United States” began at the time of the
Attorney General’s certification, i.e., in June 2009.
Section 2401(b) of 28 U.S.C. (the “FTCA statute of
limitations”) provides that:
A tort claim against the United States shall be
forever barred unless it is presented in writing
to the appropriate Federal agency within two
years after such claim accrues or unless action
is begun within six months after the date of
mailing, by certified or registered mail, of
notice of final denial of the claim by the
agency to which it was presented.
Thus the FTCA statute of limitations contains two time
restrictions: (1) a requirement that a claim be filed in writing
with the appropriate agency within two years after the claim
accrues, and (2) a requirement that action is begun within six
months after the date of mailing of notice of final denial by the
In Willis v. U.S.,719 F.2d 608 (2d Cir. 1983), the
Second Circuit gave careful consideration to whether the “or” in
the FTCA statute of limitations “really intend[ed] the
disjunctive. . . .” as to those two time restrictions.
After reviewing the history of the FTCA statute of
limitations and considering the possibilities that could result
from a strictly literal reading of the statute, the Court
concluded that the FTCA imposes two separate time restrictions on
claims, both of which must be
complied with by potential FTCA
With regard to the second time requirement, the
Court held that “Congress mandated that suit be brought within
six months after administrative denial of a claim. . . .”
As was previously found by this Court, the plaintiff
acknowledged receipt of the denial of her tort claim on July 29,
2008. (Dkt. # 50, at 17.)
As discussed above, her FTCA action
“against the United States” began in June 2009, more than ten
“A plaintiff’s failure to strictly comply with
[the FTCA’s] time restrictions deprives the court of subject
matter jurisdiction over her FTCA claims.
719 F.2d 608 (2d Cir. 1983).”
See Willis v. U.S.,
Hunt v. U.S., No. 1:07-CV-0112
(GLS\RFT), 2007 WL 2406912, at *2 (N.D.N.Y. Aug. 21,
2007)(because the plaintiff commenced her lawsuit more than six
months after mailing of the denial of claim letter, “the court
lacks subject matter jurisdiction over [plaintiff’s] claims”).
Because the plaintiff’s FTCA action “against the United States”
was not filed within six months of her receipt of the notice of
final denial of her claim2, the Court concludes that it lacks
It is not clear whether notice of the final denial of the plaintiff’s
claim was sent “by certified or registered mail. . . .” 28 U.S.C. § 2401(b).
“Because [the plaintiff] received actual notice of the denial of [her]
grievance, we conclude that the lack of certification or registration of the
subject matter jurisdiction over her FTCA claim, and that claim
must therefore be dismissed.
For the foregoing reasons, the defendant’s renewed motion to
dismiss (dkt. # 51) is GRANTED.
SO ORDERED this 13th
day of April, 2011.
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE
mail did not prevent section 2401(b)’s limitations period from running.”
Pipkin v. U.S. Postal Service, 951 F.2d 272, 274 (10th Cir. 1991). Here, the
July 24, 2008 notice of final denial advised the plaintiff that if she were
dissatisfied with the denial “you may bring an action against the United
States in an appropriate United States District Court within six (6) months of
the date of this memorandum.” (Dkt. # 28-5, at 2.)
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