Filing 7

ORDER granting 3 Motion to Dismiss for Lack of Jurisdiction. This action is dismissed without prejudice. Ordered by US DISTRICT JUDGE CLAY D LAND on 10/02/2017. (CCL)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION ATIYA D. GARNER, * Plaintiff, * vs. * CASE NO. 4:17-CV-182 (CDL) AUDREY G. MARSHALL LUNDBERG, * ELIZABETH A. GEORGE, and UNITED STATES OF AMERICA, * Defendants. * O R D E R Plaintiff Atiya Garner brought this action in the Superior Court of Muscogee County against Defendants Audrey G. Marshall Lundberg and Elizabeth A. George. and George, both injured her. doctors, Garner alleges that Marshall committed medical malpractice and Both Lundberg and George are federal employees of Martin Army Community Hospital. After Defendants removed the action to this Court, the United States of America certified that Lundberg employment action. at and George the time were of the acting in incident the scope giving Notice of Substitution, ECF No. 2. rise of to their this Based on that certification, the United States has been substituted as the Defendant in this action under 28 U.S.C. § 2679(d). Presently pending before motion to dismiss (ECF No. 3). the Court is the Government’s Under the law, Garner “shall not” bring an action against the United States until she first presents “the claim to the appropriate Federal agency” and her claim is “finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). Although Garner has filed a claim with the Department of the Army, that claim is still pending, and Garner has not received a final denial of the claim. Therefore, as Garner acknowledges, Garner has not exhausted her administrative remedies as required by the law. The Court thus concludes that it lacks jurisdiction to entertain this action. See McNeil v. United States, 508 U.S. 106, 113 (1993) (affirming dismissal of Federal Tort Claims Act case for failure to exhaust administrative remedies). Accordingly, the Government’s motion to dismiss (ECF No. 3) is granted, and Garner’s claims are dismissed without prejudice. IT IS SO ORDERED, this 2nd day of October, 2017. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 2

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