Wesley et al v. United State of America

Filing 22

OPINION AND ORDER GRANTING 11 MOTION to Dismiss filed by United State of America. Plaintiff JoEllen Wesley and her claim against the United States are hereby DISMISSED. Plaintiff Michael Wesley's claims against the United States remains. Signed by Chief Judge Jon E DeGuilio on 10/14/20. (ksp)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL A. WESLEY AND,
JOELLEN WESLEY,
Plaintiffs,
v.
UNITED STATES OF AMERICA
Defendant.

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Case No. 3:19-cv-713-JD-MGG

OPINION AND ORDER
Michael Wesley alleges negligence and malpractice under the Federal Tort Claims Act
committed by the United States, through its agent the Department of Veterans Affairs (“VA”), its
subdivision Veterans Health Administration (“VHA”), and its employee Dr. Bradley R.
Hammersley. [DE 1]. Mr. Wesley’s wife, JoEllen Wesley, alleges she sustained a loss of
consortium as a result of the same negligence. Id. In response, the United States moves to
dismiss Mrs. Wesley’s claim for failure to exhaust her administrative remedies. [DE 11]. The
time to respond to the motion has passed and no response has been filed. For the following
reasons, the Court grants Defendant’s Motion to Dismiss.
I. FACTUAL BACKGROUND
In June 2012, Mr. Wesley sought medical care from Dr. Hammersley, a podiatrist at the
Veterans Administration Northern Indiana Health Care System (“VANIHCS”) in Fort Wayne,
Indiana, for issues Mr. Wesley was experiencing with his left foot. Several surgeries were

performed, which eventually resulted in the amputation of his left leg below the knee. On March
27, 2018, the VA alerted Mr. and Mrs. Wesley of potential deficiencies related to the care Mr.
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Wesley had received from Dr. Hammersley. After that meeting, Mr. Wesley filed an administrative
tort claim on February 7, 2019 detailing his claim against the Defendant. That form did not mention
Mrs. Wesley, or her loss of consortium claim, in any capacity. Mrs. Wesley did not file her own
administrative tort claim form.
On September 9, 2019, the couple filed the Complaint at issue, including Mr. Wesley’s
medical malpractice claim as well as Mrs. Wesley’s loss of consortium claim. [DE 1]. The claims are
brought under the Federal Tort Claims Act. Attached to the Complaint as Exhibit A is the
administrative tort claim that was filed by Mr. Wesley only. The United States now moves to dismiss
Mrs. Wesley and her claim for failing to exhaust administrative remedies.
II. STANDARD OF REVIEW

In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted under Federal Rule of Civil Procedure 12(b)(6), the Court construes the complaint in the
light most favorable to the plaintiff, accepts the factual allegations as true, and draws all
reasonable inferences in the plaintiff’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143,
1146 (7th Cir. 2010). A complaint must contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement must
contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its
face, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and raise a right to relief above the speculative
level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, a plaintiff’s claim need
only be plausible, not probable. Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935
(7th Cir. 2012). Evaluating whether a plaintiff’s claim is sufficiently plausible to survive a
motion to dismiss is “‘a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Iqbal, 556 U.S. at 679).
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While the Defendant has brought this motion pursuant to Rule 12(b)(6), the Court also
reviews it under Rule 12(b)(1), which authorizes dismissal of claims over which the Court lacks
subject matter jurisdiction. In analyzing a motion to dismiss, the Court must accept as true all
well-pled factual allegations and must draw all reasonable inferences in favor of the plaintiff.
Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Further, “[t]he district court
may properly look beyond the jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction
exists.” Id. (citations omitted). The burden of establishing proper federal subject matter
jurisdiction rests on the party asserting it, which for the purposes of this motion is the plaintiff,
Mrs. Wesley. Muscarello v. Ogle Cty. Bd. of Comm’rs, 610 F.3d 416, 425 (7th Cir. 2010).
III. DISCUSSION
Mrs. Wesley purports to bring her claim against the United States under the Federal Tort
Claims Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2401(b), 2671–80. The FTCA acts as a limited
waiver of federal sovereign immunity, allowing citizens to sue in a timely fashion for the tortious
conduct of the United States as if it were a private party. Charlton v. United States, 743 F.2d
557, 558 (7th Cir. 1984). However, prior to filing a claim in federal court, a plaintiff must
exhaust his or her administrative remedies in relation to the claim. 28 U.S.C. § 2675(a). See also
Chronis v. United States, 932 F.3d 544, 546 (7th Cir. 2019). Per the statute, a plaintiff seeking to
sue the government must file a claim with the particular agency at issue and have that claim
denied prior to filing suit in federal court. 28 U.S.C. § 2675(a); Khan v. United States, 808 F.3d
1169, 1172 (7th Cir. 2015). The administrative claim must be sufficiently detailed to give the
federal agency, or a “legally sophisticated reader,” notice of the alleged injury and the conduct at
issue. LeGrande v. United States, 687 F.3d 800, 813 (7th Cir. 2012). The very purpose of the

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provision is to provide the agency with the opportunity to settle claims that warrant settlement.
McNeil v. United States, 508 U.S. 106, 112, n.7 (1993); Kanar v. United States, 118 F.3d 527,
531 (7th Cir. 1997).
Mrs. Wesley does not allege that she exhausted her administrative remedies, and this
motion is unopposed. Accordingly, it is undisputed that Mrs. Wesley did not file an
administrative claim of her own. The Court therefore must determine if Mr. Wesley’s
administrative claim provided sufficient notice of Mrs. Wesley’s loss of consortium claim under
the FTCA. On Mr. Wesley’s administrative claim, only his name and his attorney are listed and
only Mr. Wesley signed the document attesting to its accuracy. [DE 1-1]. Further, the only
alleged injuries were Mr. Wesley’s physical injuries. Id. Where the purpose of the exhaustion
requirement is to provide an opportunity for agencies to settle meritorious claims, Mrs. Wesley
cannot be said to have exhausted her administrative remedies to satisfy that requirement as the
agency was not on notice of her claims.
This matter is very similar to that of Richardson v. United States, where a wife’s loss of
consortium claim was denied because she failed to file her own administrative claim. 831 F.
Supp. 657, 661 (N.D. Ind. 1993) (citing McNeil, 508 U.S. at 106). 1 There, the court held that §
2675(a) was to be read literally and that the court lacked the discretion to deviate from a
technical reading. Id. Unlike Loper v. United States, where a wife’s name and signature on her
husband’s claim was sufficient, neither Mrs. Wesley’s name nor signature were on the form here

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The Defendant lists several cases from other district courts holding that the court lacked subject matter jurisdiction
where spouses failed to file a separate claim because the requirements of § 2675(a) had not been met. See Cartensen
v. United States, 2019 WL 5537221, *3 (S.D. Ind. Oct. 25, 2019) (dismissing spouse’s claim for loss of consortium
for failure to exhaust administrative remedies); Christian v. United States, 859 F.Supp.2d 468, 477 (E.D.N.Y. 2012)
(same); Schamberger v. United States, 2007 WL 1521502, at *1 (E.D. Wis. May 23, 2007) (same); Plescia v. United
States, 1993 WL 135307, * 2 (N.D. Ill. April 23, 1993) (same); Rode v. United States, 812 F. Supp. 45 (M.D. Pa.
1992) (same); Ryan v. United States, 457 F. Supp. 400, 403 (W.D. Pa. 1978) (same); Stewart v. United States, 458 F.
Supp. 871, 872 (S.D. Ohio 1978) (same); Heaton v. United States, 383 F. Supp. 589, 591 (S.D.N.Y. 1974) (same).

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and there is nothing in this case to indicate that the VA was ever on notice of Mrs. Wesley’s loss
of consortium claim. 904 F. Supp. 863, 865–66 (N.D. Ind. 1995). Mrs. Wesley’s failure to file an
administrative claim cannot be categorized as a “mere technicality,” as two and a half years have
passed since she was made aware of the underlying claim. Richardson, 831 F. Supp. at 658–59.
Without the administrative tort claim, the VA was not on notice of Mrs. Wesley’s claims and the
requirements of 28 U.S.C. § 2675(a) were not satisfied. Therefore, because Mrs. Wesley’s loss of
consortium claim is independent from that of Mr. Wesley’s claims and she failed to exhaust her
administrative remedies, her claim warrants dismissal.
IV. CONCLUSION
Accordingly, the United States’ uncontested Motion to Dismiss JoEllen Wesley and her
loss of consortium claim is GRANTED. Plaintiff JoEllen Wesley and her claim against the
United States are hereby DISMISSED. Plaintiff Michael Wesley’s claims against the United
States remains.
SO ORDERED.
ENTERED: October 14, 2020
/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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