BIBBS v. WERTMAN et al

Filing 42

ENTRY ON MOTION TO DISMISS - 20 Motion to Dismiss is granted. The FTCA is clear that no legal action shall be initiated until the claim process is properly exhausted. Bibbs' FTCA claim is premature because he had not exhausted his admin istrative remedies at the time this action was filed. For the reasons stated above, the FTCA claim against the United States must be dismissed for lack of subject matter jurisdiction. No partial final judgment shall issue at this time as to the c laims resolved in this Entry. The clerk is directed to update the docket to reflect that the United States is no longer a defendant to this action. See entry for details. Signed by Judge Tanya Walton Pratt on 9/28/2017. (Copy mailed to plaintiff) (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

WILLIAM JEROME BIBBS,
Plaintiff,
vs.
THE UNITED STATES OF AMERICA,
Dr. WILSON, Dr. KOJIMAD,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 1:16-cv-03338-TWP-DML

ENTRY ON MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed by Defendants the United
States of America (the “United States”). On December 9, 2016, Plaintiff William Jerome Bibbs’
(“Bibbs”) filed a complaint under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et
seq. The amended complaint sought monetary damages for allegations that the United States
mistreated his liver disease. The United States now seeks dismissal of the claims alleged against it
arguing that Bibbs failed to exhaust his administrative remedies as required by the FTCA prior to
filing this civil action. Bibbs has not opposed the motion and the time to do so has passed. For the
reasons explained below, the United States’ unopposed Motion to Dismiss, dkt [20], is granted.
I. LEGAL STANDARD
The United States argues dismissal is appropriate because subject matter jurisdiction is
absent. Subject matter jurisdiction “defines the court’s authority to hear a given type of case,”
United States v. Morton, 467 U.S. 822, 828 (1984), and is the first question in every case. Sherman
v. Community Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437, 440 (7th Cir. 1992), cert.
denied, 114 S. Ct. 2109 (1994). “Jurisdiction over any suit against the Government requires a clear

statement from the United States waiving sovereign immunity, together with a claim falling within
the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)
(internal citations omitted).
The procedural vehicle used by the United States in challenging the Court’s jurisdiction is
its motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. A court
ruling on a Rule 12(b)(1) motion to dismiss must accept as true all well-pled factual allegations
and draw reasonable inferences in favor of the plaintiff. Capitol Leasing Co. v. F.D.I.C., 999 F.2d
188, 191 (7th Cir. 1993). However, where a party raises a factual question concerning jurisdiction,
“the district court is not bound to accept as true the allegations of the complaint which tend to
establish jurisdiction.” Grafon Corp. v. Hauserman, 602 F.2d 781, 783 (7th Cir. 1979). In such
circumstances, the district court may properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted to determine whether subject matter
jurisdiction exists. Id. The burden of proof to demonstrate subject matter jurisdiction is on the party
asserting jurisdiction. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.
2003).
Lawsuits against the United States for monetary damages are barred by the doctrine of
sovereign immunity, except in specific circumstances when the government consents to be sued.
See Lehman v. Nakisan, 453 U.S. 156, 160 (1981); United States v. Testan, 424 U.S. 392, 399
(1976); United States v. Sherwood, 312 U.S. 584, 586 (1941). The exclusive waiver of sovereign
immunity for actions sounding in tort against the United States, its agencies, and its employees
acting within the scope of their employment is the FTCA. In addition, the FTCA is the sole remedy
for any tort claim resulting from the negligent or wrongful act of a government employee acting
within the scope of his employment. Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2013).

The language of the FTCA is clear that a claimant must seek administrative review prior to filing
an action in federal court under the FTCA, and must allow that process to be exhausted.
The Department of Justice has promulgated regulations prescribing the manner of
presenting an administrative claim under the FTCA. Title 28 C.F.R. § 14.2(a) provides that a claim
is deemed to be presented when an executed Standard Form 95 or other written notification of an
incident is received and is accompanied by a claim for monetary damages in a sum certain. For
Bibbs to comply with these provisions, he must have filed an administrative tort claim with the
agency within two years of the date his claim accrued, and must await a denial or the passage of
six months before filing suit.
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The United States argues that Bibbs has not exhausted his administrative remedies and
thus, this Court lacks subject matter jurisdiction. In support of its argument, the United States has
presented an affidavit from Sarah Allison-Armstrong. She explains that Bibbs submitted a notice
of his tort claim - Standard Form 95 - with the Bureau of Prisons on January 18, 2017, a date
subsequent to the filing of this civil action. It was rejected and returned to Bibbs because it was
incomplete. Bibbs then submitted an amended tort claim on March 1, 2017, which was accepted
for consideration. The BOP has not denied the administrative claim and the six-month period for
the claim to be “deemed denied” has not run. Because this prerequisite must be met for any tort
suit against the government to proceed, Bibbs’ claim is premature.
As a result, this Court lacks jurisdiction over the FTCA claim, and therefore must dismiss
this claim pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See McNeil v. United
States, 508 U.S. 106, 107 (1993) (Section 2675(a) requires that a claimant file a claim with the

appropriate Federal agency, that the agency deny the claim, or not process the claim within six
months of the filing, before any legal action may be instituted.).
III. CONCLUSION
The FTCA is clear that no legal action shall be initiated until the claim process is properly
exhausted. Bibbs’ FTCA claim is premature because he had not exhausted his administrative
remedies at the time this action was filed. For the reasons stated above, the FTCA claim against
the United States must be dismissed for lack of subject matter jurisdiction. Accordingly, the Court
GRANTS the Defendant’s Motion to Dismiss, dkt [20], without prejudice. A dismissal for lack of
subject matter jurisdiction is not on the merits. Bunker Ramo Corp. v. United Business Forms, Inc.,
713 F.2d 1272, 1277 (7th Cir. 1983); Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir.
2004); Johnson v. Wattenbarger, 361 F.3d 991, 993 (7th Cir. 2004). A court that lacks subject
matter jurisdiction cannot dismiss a case with prejudice. Id.
No partial final judgment shall issue at this time as to the claims resolved in this Entry.
The clerk is directed to update the docket to reflect that the United States is no longer a defendant
to this action.
IT IS SO ORDERED.

Date: 9/28/2017

Distribution:

WILLIAM JEROME BIBBS
47202-039
BUTNER - MEDIUM II FCI
BUTNER MEDIUM II FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1500
BUTNER, NC 27509
Michael S. Hult
SCHULTZ & POGUE LLP
[e-mail]
Jon M. Pinnick
SCHULTZ & POGUE LLP
[e-mail]
Kelly Rota
U.S. ATTORNEY'S OFFICE OF THE SOUTHERN DISTRICT OF INDI
[e-mail]