Boyles et al v. United States of America et al

Filing 83

ORDER granting 72 Motion to Dismiss for Failure to State a Claim or, in the alternative, Motion for Summary Judgment: For the reasons thoroughly delineated in the attached Memorandum and Order, the Court (construing the motion as one for dismissa l, not summary judgment) GRANTS Defendant USA's motion (Doc. 72) and DISMISSES without prejudice Plaintiffs' first amended complaint (Doc. 53) based on Plaintiffs' failure to fully exhaust under 28 U.S.C. 2675(a). No operative/viable complaint remains before the Court at this time, and the Court sets an August 21, 2013 deadline for Plaintiffs to take action (see Order for details). Signed by Judge Michael J. Reagan on 7/31/13. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OLD NATIONAL TRUST COMPANY,
personal representative of the
Estate of Kenneth E. Boyles, and
LEA ANN BOYLES,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 12-cv-0197-MJR-DGW

MEMORANDUM AND ORDER
REAGAN, District Judge:
A.

Introduction and Procedural Overview

This case is brought under the Federal Tort Claims Act, 28 U.S.C. 2671, et seq.,
which provides that the United States shall be liable on tort claims in the same manner
and to the same extent as a private individual or entity “under like circumstances,”
subject to certain limitations. 28 U.S.C. 2674. The suit challenges the treatment received
by Kenneth Boyles (starting in January 2005) at a Veterans Affairs hospital in Marion,
Illinois and a Veterans Affairs clinic in Evansville, Indiana.
Count I of the original complaint alleged that the United States of America and
Eric Shinseki, Secretary of the U.S. Department of Veterans Affairs, acted negligently by
misdiagnosing and improperly treating a lump on the right side of Kenneth Boyles’
neck as an enlarged neck muscle. (In July 2007, a private provider operated on Kenneth
and diagnosed Stage IV squamous cell carcinoma on the right side of Kenneth’s neck.)

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Count II alleged a loss of companionship and household services claim by Kenneth’s
wife, Lea Ann Boyles. The complaint – which sought $5,000,000.00 in damages -- was
filed in June 2011 in the United States District Court for the Southern District of Indiana,
roughly two and a half years after the Boyles had filed an administrative claim with the
Veterans Affairs Administration (VA).
On March 1, 2012, the Indiana federal court granted a motion to transfer the case
to the Southern District of Illinois, where it was randomly assigned to Judge J. Phil
Gilbert, District Judge, and Donald J. Wilkerson, Magistrate Judge.

Judge Gilbert

dismissed Secretary Shinseki in May 2012, since the United States is the only proper
defendant in an FTCA case. See Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).
In January 2013, Kenneth Boyles died. On April 15, 2013, Magistrate Judge
Wilkerson granted Plaintiffs’ motion to amend the complaint and substitute Old
National Trust Company (the personal representative of the estate of Kenneth Boyles)
in place of Kenneth Boyles. An amended complaint was filed on April 16, 2013, with
Old National and Lea Ann Boyles as Plaintiffs and the USA as Defendant.

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amended complaint seeks $10,000,000.00 in damages (Doc. 53, p. 8).
Judge Gilbert recused shortly thereafter, and the case was randomly reassigned
to the undersigned District Judge. Now before the Court is Defendant USA’s June 5,
2013 motion to dismiss, or in the alternative, for summary judgment to which Plaintiffs
responded June 25, 2013. The USA declined to file a permitted reply brief by the July
22, 2013 deadline set by the Court (see Doc. 78). For the reasons set forth below, the
Court grants the USA’s motion.

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B.

Applicable Legal Standards

Analysis begins with reference to the relevant legal standards. The USA asks the
Court to dismiss Plaintiffs’ amended complaint without prejudice for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) or grant summary judgment under
Federal Rule of Civil Procedure 56, if the Court needs to look outside the pleadings to
examine Plaintiffs’ underlying administrative claim (see Doc. 72, pp. 1-2). Plaintiffs
respond as if the motion seeks only dismissal, not summary judgment.
The amended complaint (Doc. 53, pp. 1-2) alleges that Plaintiff filed an
administrative claim with the VA on December 2, 2008, and more than six months
passed since the filing of Plaintiffs’ standard form 95 notice to the VA. Neither side’s
arguments require examination of the administrative claim itself, and the undersigned
Judge need not delve into the particulars of that claim (Doc. 73), so the pending motion
need not be treated as seeking summary judgment. See FED. R. CIV. P. 12(d) (“If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary
judgment...”). See also Santana v. Cook County Bd. of Review, 679 F.3d 614, 619 (7th
Cir. 2012); 1 Gray v. U.S., -- F.3d --, 2013 WL 3796243 n.1 (7th Cir. July 23, 2013) (“in a
typical case it would be inappropriate on a motion to dismiss to consider materials
outside the complaint, including the administrative claim itself.”).

Of course, the Court can properly consider matters attached to the
complaint and referred to in the complaint which are central to the
plaintiff’s claim. See, e.g., Hecker v. Deer & Co., 556 F.3d 575, 582 (7th Cir.
2009); Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002).
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In deciding a motion to dismiss for failure to state a claim on which relief can be
granted under Rule 12(b)(6), the Court’s task is to determine whether the complaint
includes “enough facts to state a claim to relief that is plausible on its face.” Khorrami
v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007). Post-Twombly, “courts must still approach motions under Rule 12(b)(6)
by ‘construing the complaint in the light most favorable to the plaintiff, accepting as
true all well-pleaded facts alleged, and drawing all possible inferences in her favor.’”
Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009), cert. denied, 558 U.S. 1148 (2010),
quoting Tamayo v. Blagoyevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Legal conclusions
and conclusory allegations that merely recite the elements of a claim are not entitled to
the presumption of truth afforded to well-pled facts. See McCauley v. City of Chicago,
671 F.3d 611, 616 (7th Cir. 2011).
C.

Analysis

The FTCA, 28 U.S.C. 2671, et seq., is a limited waiver of the immunity otherwise
enjoyed by the United States as a sovereign entity. Couch v. United States, 694 F.3d
852, 856 (7th Cir. 2012), citing Dolan v. U.S. Postal Service, 546 U.S. 481, 484 (2006).
The FTCA “opens the federal government to tort liability ‘under circumstances where
the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.’” LeGrande v. United States,
687 F.3d 800, 808 (7th Cir. 2012), quoting 28 U.S.C. 1346(b).
The FTCA delineates procedural rules, including the requirement that a plaintiff
take his claim to the appropriate federal agency (within a given time period) before

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filing suit in federal court. 2

More specifically, 28 U.S.C. 2675(a) provides that an action

shall not be instituted against the United States upon a claim for money damages based
on personal injury or death caused by the negligence of any Government employee
acting within the scope of his employment, “unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing….” 3
The FTCA’s exhaustion requirement is not jurisdictional in the true sense – i.e., it
can be waived or forfeited. Glade ex rel. Lundskow v. U.S., 692 F.3d 718, 723 (7th Cir.
2012), citing Parrott v. U.S., 536 F.3d 629, 634 (7th Cir. 2008), and Collins v. United
States, 564 F.3d 833, 838 (7th Cir. 2009). It was not waived or forfeited here, though, and
caselaw holds that failure to exhaust administrative remedies before filing suit under
the FTCA mandates dismissal. McNeil v. United States, 508 U.S. 106, 113 (1993). See
also Arteaga v. United States, 711 F.3d 828, 831 (7th Cir. 2013).

In FTCA actions, state substantive law governs the nature of the
cause of action, e.g., whether the defendant owed the plaintiff a duty of
care, but the FTCA imposes its own procedural rules, including the
exhaustion provision. See LeGrande, 687 F.3d at 808-09; Parrott v. United
States, 536 F.3d 629, 637 (7th Cir. 2008) (reiterating that the FTCA
incorporates the substantive law of the state where the tortious act or
omission occurred); Warrum v. U.S., 427 F.3d 1048, 1050 (7th Cir. 2005).
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Additionally, 28 U.S.C. 2675(b) limits the amount recoverable in an
FTCA action to the amount of the claim presented at the agency level,
except when the increased amount “is based upon newly discovered
evidence not reasonably discoverable at the time of presenting the claim to
the federal agency, or upon allegation and proof of intervening facts,
relating to the amount of the claim.”
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In the case at bar, the USA does not contend that Plaintiffs failed to file an
administrative claim prior to commencing this suit or that the claims contained within
Plaintiffs’ original complaint (Kenneth and Lea Ann Boyles’ personal injury and loss of
consortium claims) warranted dismissal. No one disputes that an administrative claim
was filed by the Boyles in 2008, and they did not institute this lawsuit until June 2011
(well after the claim could be deemed denied, because the VA did not make a final
disposition within six months of filing). Rather, the USA maintains that the claim
added via the April 2013 amended complaint (the wrongful death claim filed with leave of
court after Kenneth Boyles died in January 2013) was not exhausted. The USA correctly
points out that “Plaintiffs’ cause of action for wrongful death was not preceded by an
administrative claim for a death” (Doc. 72, p. 3).
The question before this Court is whether Plaintiffs’ exhaustion as to Kenneth
Boyles’ personal injury/medical malpractice claim satisfies the FTCA’s exhaustion
requirement as to the subsequent wrongful death claim.

The undersigned Judge

reluctantly answers this question in the negative. The Court’s June 4, 2013 Order
declining to reverse Judge Wilkerson’s ruling allowing amendment of the complaint
(see Doc. 66) touched upon but did not squarely raise this issue. The question now is
directly before the undersigned Judge – fully fleshed out via dispositive motion rather
than a challenge to a nondispositive ruling.
Common-sense appeal remains in the reasoning that if a claim added via
complaint amendment depends on the same proof as (i.e., is not independent of) the
original claim, it would be onerous to require a plaintiff to file a whole new claim at the

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agency level and “start over” with an administrative claim for wrongful death, based on
the same allegations of negligence asserted in the plaintiff’s medical malpractice claim.
Forcing a plaintiff to go back to the square one seems particularly harsh here, where
nearly five years has elapsed since Plaintiffs filed their original administrative claim,
and the denial of that claim led to this suit which already has been pending in federal
court over two years (with a trial setting just three months away).
But this Court’s analysis is cabined by two powerful forces – the plain language
of the statute (the FTCA’s exhaustion requirement), and the guiding principle that all
waivers of sovereign immunity (including the FTCA’s) must be interpreted narrowly.
See, e.g., U.S. v. Norwood, 602 F.3d 830, 834 (7th Cir. 2010). “In the case of a waiver of
sovereign immunity,” courts must avoid any “construction that would broaden the
waiver beyond what Congress intended.” Arnett v. C.I.R., 473 F.3d 790, 799 (7th Cir.
2007), citing Smith v. United States, 507 U.S. 197, 203 (1993). Or, as the First Circuit
Court of Appeals summarized, federal courts must interpret the FTCA’s waiver as
“closely circumscribed by the terms of the statute” itself. Barrett ex rel. Estate of
Barrett v. United States, 462 F.3d 28, 36 (1st Cir. 2006), cert. denied, 550 U.S. 936 (2007).
Turning back to those terms, 28 U.S.C. 2675(a) unambiguously mandates that
before any lawsuit is commenced upon any claim against the United States for money
damages for, inter alia, personal injury or death, that claim must be presented at the
administrative agency level and finally decided by the agency:
An action shall not be instituted upon a claim against the United States
for … personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the

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scope of his office or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing….
Id., emphasis added. 4
The Seventh Circuit interpreted this precise language in the context of the nearly
identical circumstances presented by the case sub judice. In Warrum v. United States,
427 F.3d 1048 (7th Cir. 2005), cert. denied, 549 U.S. 815 (2006), the issue was whether a
wrongful death claim – filed after a non-death medical malpractice claim already was
pending – required FTCA exhaustion. The United States District Court for the Southern
District of Indiana dismissed the action based on plaintiff’s failure to comply with the
exhaustion requirement as to the wrongful death claim.

The plaintiff (the personal

representative of the decedent’s estate) appealed.
The Seventh Circuit affirmed the dismissal, finding that the filing of a medical
malpractice claim with the appropriate agency (the VA) based on failure to diagnose
esophageal cancer, did not satisfy the FTCA’s exhaustion requirement as to the
subsequent wrongful death claim (a death resulting from the same alleged failure to
diagnose).
It is true that the district and appellate courts in Warrum applied Indiana law to
determine the substantive nature of the plaintiff’s cause of action. In the case at bar,
Illinois law presumably applies, and the two states’ laws differ in some respects as to

Section 2675(a) further provides that the agency’s failure to make a
final disposition of the claim within six months “shall, at the option of the
claimant,” be deemed a final denial of the claim for purposes of the FTCA.
See also On-Site Screening, Inc. v. U.S., 687 F.3d 896, 899 (7th Cir. 2012).
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the nature of a wrongful death claim. But the critical point for purposes of the issue
currently before this Court is the exhaustion requirement contained in 28 U.S.C. 2675.
That is a procedural rule, and “the FTCA imposes its own procedural rules – including
the administrative exhaustion provision at issue here.” Warrum, 427 F.3d at 1050.
The Seventh Circuit held in Warrum that § 2675(a) requires the presentation of an
administrative claim for wrongful death before a wrongful death claim may be pursued
in federal court under the FTCA: “the presentation of [plaintiff’s] malpractice
administrative claim notice in 2000 did not satisfy the exhaustion requirement of
§ 2675(a) for purposes of this FTCA wrongful death action.” Id., 427 F.3d at 1052.
Significantly, a petition for writ of certiorari was filed in Warrum – squarely
attacking the Seventh Circuit’s decision that an FTCA claimant must file a second
administrative claim in order to maintain a cause of action for wrongful death when the
tort victim died of injuries based on the same alleged acts or omissions presented in the
original administrative claim.

See Petition for Writ of Cert., 2006 WL 1371010 (May

15, 2006). The United States Supreme Court denied the petition. Warrum v. U.S., 549
U.S. 815 (October 2, 2006).
The law of this Circuit makes clear that exhaustion of administrative remedies
must occur (and be completed) before suit is filed. The requirement is not met if a claim
is filed during the pendency of a lawsuit. The Seventh Circuit discussed this point ten
days ago:
Pre-suit exhaustion exhibits respect for a coordinate branch of the federal
government by giving the agency “an opportunity to correct its own
mistakes ... before it is haled into federal court.” Woodford v. Ngo, 548 U.S.

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81, 89 … (2006)…. Exhaustion before suit also gives the agency and the
would-be plaintiff the opportunity to work out their differences without
litigation, thus conserving the resources of the judiciary and the parties.
See Porter v. Nussle, 534 U.S. 516, 525 … (2002)…. And even if litigation
ensues, pre-suit exhaustion may narrow the issues before the court or at
least encourage the development of a clean factual record. See Porter, 534
U.S. at 525; Edwards, 639 F.3d at 361.
Gray, 2013 WL 3796243, at *5 (7th Cir. July 23, 2013). Similarly, the Supreme Court has
recognized that the “most natural reading” of § 2675(a) indicates that “Congress
intended to require complete exhaustion of Executive remedies before invocation of the
judicial process.” McNeil, 508 U.S. at 112, quoted in Mader v. United States, 654 F.3d
794, 797 (8th Cir. 2011).
“The purpose of the FTCA’s exhaustion requirement is to facilitate the
administrative evaluation of tort claims by the agency whose activity gave rise to the
claim and permit settlement of meritorious claims more quickly and without litigation.”
Warrum, 427 F.3d at 1058. Without question, then, § 2675(a) bars a suit unless the claim
first is presented to the appropriate federal agency.
In the instant case, Plaintiffs have not “first presented” their wrongful death
claim to the appropriate federal agency (the VA). Plaintiffs did exhaust their non-death
malpractice claim, presenting that claim to the VA in 2008. But the VA could not have
fully evaluated the scope of its liability for a wrongful death claim at that time. See
Warrum, 427 F.3d at 1052 (“In order to meaningfully evaluate the extent of its liability
in a death case, the federal agency must have notice of the death, not merely an
assertion of medical malpractice. Indeed, in the case of a claim based on death, the
applicable regulations allow the government to request the names of the decedent’s

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survivors as well as the ‘degree of support afforded by the decedent to each survivor
dependent upon him….’”). Here, Plaintiffs’ wrongful death claim was not exhausted
before this litigation was commenced in federal court.

The plain language of the

applicable statutory provision and the holding of Warrum mandate that this Court
dismiss Plaintiffs’ amended complaint without prejudice, based on the fact the claims
contained therein were not completely exhausted prior to the filing of this suit.
So the Court must dismiss (without prejudice) Plaintiffs’ amended complaint.
That does not resurrect the original complaint, which (1) reflects the incorrect parties as
Plaintiffs, and (2) was rendered inoperative by the earlier amendment. See, e.g., Vitrano
v. U.S., 643 F.3d 229, 234 (7th Cir. 2011) (“It is axiomatic that an amended complaint
supersedes an original complaint and renders the original void.”).
The Court declines to do what Plaintiffs urge (Doc. 81, p. 8) – allow the case to
stay open while Plaintiffs file an administrative claim before the VA, exhaust that claim,
and then (likely in 6 months from the date the claim is filed, assuming the VA has not
returned a final disposition on the claim) move to amend their superseded complaint in
the current action. The lesson of the cases set forth above is that exhaustion must be
completed before the judicial process is invoked (not halted mid-stream so exhaustion
can be pursued).
Nothing remains before the Court on which to proceed at this point.
Accordingly, the Court will give Plaintiffs 21 days to file a second amended complaint
on only those claims which have been fully exhausted. Alternatively, Plaintiffs can file a
Memorandum notifying the Court that they intend to return to the VA to exhaust as to

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their wrongful death claim. Plaintiffs must take one of these two actions on or before
August 20, 2013.
Should the latter alternative be pursued – dismissal of the current case to permit
exhaustion as to the wrongful death claim – and if Plaintiffs subsequently file a new suit
herein and indicate on their civil cover sheet that it is a “related case” to this action, the
case will be reassigned to the undersigned District Judge, pursuant to the policy and
practice of the District Judges of this Court. And the undersigned will work with the
Magistrate Judge to adjust the discovery deadlines and trial setting to reflect progress
made to date, if the parties find this appropriate.
D.

Conclusion

For all the foregoing reasons, the Court GRANTS Defendant USA’s motion (Doc.
72) and DISMISSES without prejudice Plaintiffs’ amended complaint (Doc. 53). On or
before August 20, 2013, Plaintiffs shall (1) file a second amended complaint containing
only those claims which were fully exhausted before this case was filed in 2011, or
(2) file a memorandum indicating that they intend to return to the appropriate agency
to exhaust their wrongful death claim(s). If the second option is chosen, or if no action
is taken in a timely manner, the Court will enter judgment reflecting the without
prejudice dismissal of this action, and the Clerk shall close the case.
IT IS SO ORDERED.
DATED July 31, 2013.

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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