Dean v. United States Department of Highways et al
Filing
23
ORDER AND REASONS granting 13 Motion to Dismiss for Lack of Jurisdiction. Plaintiff's claims against the United States are DISMISSED. Party United States of America dismissed. Signed by Judge Sarah S. Vance on 1/16/2018. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRYL DEAN
CIVIL ACTION
VERSUS
NO. 17-7672
UNITED STATES OF AMERICA ET AL.
SECTION “R” (2)
ORDER AND REASONS
Defendant, the United States of America, moves to dismiss Plaintiff
Darryl Dean’s claims.1 For the following reasons, the Court grants the
motion.
I.
BACKGROUND
This case arises out of injuries allegedly sustained by Plaintiff Daryl
Dean, a disabled veteran and retired police sergeant. On August 10, 2016,
plaintiff hit “a severely large water-filled pothole” while driving down Moss
Street in New Orleans.2 Plaintiff alleges that the collision damaged his car
and injured his back. 3 Plaintiff then called 911, which he asserts “neglectfully
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R. Doc. 13.
R. Doc. 1 at 6.
Id.
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mishandled the call.” 4 Emergency assistance never arrived, and plaintiff
sought medical attention on his own. 5
Plaintiff sued the City of New Orleans and the United States on August
10, 2017, alleging a violation of the Americans with Disabilities Act (ADA).6
The Court has dismissed plaintiff’s ADA claim against the City of New
Orleans.7 The United States now moves to dismiss for lack of jurisdiction
and for failure to state a claim. 8
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action
if the court lacks jurisdiction over the subject matter of the plaintiff’s claim.
Motions submitted under Rule 12(b)(1) allow a party to challenge the court’s
subject matter jurisdiction based upon the allegations on the face of the
complaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on
“(1) the complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented by
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Id.
Id.
Id. at 7.
R. Doc. 13.
R. Doc. 7.
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undisputed facts plus the court’s resolution of disputed facts.” Moore v.
Bryant, 853 F.3d 245, 248 (5th Cir. 2017) (quoting Barrera-Montenegro, 74
F.3d at 659). The plaintiff bears the burden of demonstrating that subject
matter jurisdiction exists. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016).
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead
enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court must accept
all well-pleaded facts as true and must draw all reasonable inferences in favor
of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th
Cir. 2009). But the Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
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matter to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, or if it is apparent from the face of the complaint that there
is an insuperable bar to relief, the claim must be dismissed. Twombly, 550
U.S. at 555.
III. DISCUSSION
A.
Federal Tort Claims Act
The United States construes plaintiff’s complaint as asserting a
violation of the Federal Tort Claims Act (FTCA). The FTCA allows a plaintiff
to recover damages for injuries “resulting from the negligent or wrongful act
or omission of any employee of the [U.S.] Government while acting within
the scope of his office or employment.” 28 U.S.C. § 2679. FTCA claims may
be brought against only the United States “and not the responsible agency or
employee.” Galvin v. Occupational Safety & Health Admin., 860 F.2d 181,
183 (5th Cir. 1988); see also 28 U.S.C. §§ 2679(a), (b)(1) (providing that the
FTCA does not authorize suits against federal agencies or federal employees
acting within the scope of their employment). Before filing suit in federal
court, a claimant must first present her claim to the appropriate federal
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agency. 28 U.S.C. § 2675(a). Administrative exhaustion is a jurisdictional
prerequisite to filing a lawsuit under the FTCA. Gregory v. Mitchell, 634
F.2d 199, 203-04 (5th Cir. 1981); see also Baker v. McHugh, 672 F. App’x
357, 362 (5th Cir. 2016).
Plaintiff does not allege in his complaint that he presented his tort
claim to any federal agency before filing this lawsuit. Nor does he offer any
evidence, in response to the United States’ motion to dismiss, of
administrative exhaustion. Plaintiff also fails to allege how his injuries
resulted from the negligence or wrongful acts of any federal employee.
Therefore, to the extent plaintiff alleges a tort claim against the United
States, this claim must be dismissed for lack of subject-matter jurisdiction
and for failure to state a claim.
B.
Americans with Disabilities Act
For the reasons discussed in the Court’s order dated December 5,
2017,9 plaintiff has also failed to state a claim under the ADA. Title II of the
ADA prohibits disability discrimination in the provision of public services.
See Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc).
Specifically, 42 U.S.C. § 12132 provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation
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R. Doc. 13.
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in or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”
Plaintiff does not allege that the United States treated him differently
than others because of his disability. While he does allege that the 911
dispatcher negligently handled the call, he does not assert that this negligent
treatment was based on his disability. Nor does he allege that the pothole
rendered Moss Street inaccessible. Cf. Frame, 657 F.3d at 227 (“When a city
decides to build or alter a sidewalk and makes that sidewalk inaccessible to
individuals with disabilities without adequate justification, disabled
individuals are denied the benefits of that city’s services, programs, or
activities.”). Moreover, plaintiff fails to allege that the United States is
responsible for either handling 911 calls or maintaining Moss Street.
Although the Court construes plaintiff’s complaint broadly because of his pro
se status, see Davison v. Huntington Ingalls, Inc., 712 F.3d 884, 885 (5th
Cir. 2013), the Court cannot discern from plaintiff’s pleadings any possible
examples of disability-based discrimination by the United States in violation
of Title II of the ADA. Accordingly, plaintiff’s ADA claim against the United
States must be dismissed for failure to state a claim.
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to
dismiss. Plaintiff’s claims against the United States are DISMISSED.
16th
New Orleans, Louisiana, this _____ day of January, 2018.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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