GARNER v. LUNDBERG, et al.

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)

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

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