Johns v. United States of America et al

Filing 32

ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction. Counts I and II of the Complaint 1 against the United States of America are DISMISSED WITH PREJUDICE, but without regard to the merits of the underlying claim; and Defendant United States of America is DISMISSED from this action. (Written Opinion) Signed by Judge Jeffrey M. Bryan on 3/5/2025. (LIA)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Nicole Johns, individually and as Trustee for
the Next-of-Kin of Joseph Fairbanks, Jr.,
Deceased,

File No. 24-CV-01892 (JMB/LIB)

Plaintiff,

ORDER

v.
United States of America; Brent Pemberton,
Jr.; Delwyn English; Joshua Gutierrez; Bryant
Siekas; Anthony Beaulieu; Tyler Neadeau;
Sierrajen Essert; Jon Schoenborn; Jimmy
Fineday; William Strong; Bradley Barrett;
Charles Martin; Justice Desjarlait; Danelle
Nelson; Dorian Prentice; and John Does 1–5;
Defendants.

Oliver E. Nelson, III, Magna Law Firm, Minneapolis, MN, for Plaintiff Nicole Johns.
Trevor Brown, United States Attorneys’ Office, Minneapolis, MN, for Defendant United
States of America.
This matter is before the Court on Defendant United States of America’s motion to
dismiss Plaintiff Nicole Johns’s tort claims against it for lack of subject-matter jurisdiction.
(Doc. No. 21.) For the reasons explained below, the Court grants the motion.
BACKGROUND
A.

Death of Joseph Fairbanks, Jr.

Johns’s son, Joseph Fairbanks, Jr., was taken into custody and incarcerated at the
Red Lake Detention Center (RLDC). (Doc. No. 1 [hereinafter, “Compl.”] ¶¶ 1, 20.) Upon
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his arrival at the RLDC on May 27, 2022, he informed staff that he suffered from a rare
hereditary condition, angioedema. (Id. ¶ 20.) Angioedema “can cause severe swelling
[and] pain,” and, if left untreated, can cause “fatal complications.” (Id. ¶ 19.) Fairbanks
informed RLDC staff that he needed timely treatment with an injected medication called
Firazyr. (Id. ¶ 20.)
On May 28, a day after he entered RLDC, Fairbanks experienced “intense
abdominal pain” and vomiting. (Id. ¶ 21.) RLDC staff permitted Johns to enter the facility
and administer a dose of Firazyr to Fairbanks to relieve his abdominal pain. (Id.) While
there, Johns informed RLDC staff that the Firazyr would not assist with Fairbanks’s
vomiting and that, if the vomiting continued, “immediate medical intervention at a hospital
would be necessary.” (Id.)
Despite Johns’s instructions, the Complaint alleges that RLDC staff failed to
monitor Fairbanks’s symptoms. (Id.) By the following morning, May 29, Fairbanks’s
condition worsened—he was vomiting persistently. (Id. ¶ 22.) At 10:21 a.m. that day,
RLDC staff contacted a nearby hospital to seek “advice for an inmate experiencing severe
abdominal pain and vomiting.” (Id.) The hospital recommended immediate medical
attention, but approximately forty minutes passed before RLDC staff contacted Emergency
Medical Services (EMS). (Id. ¶ 23.) By the time EMS arrived, Fairbanks was on the floor
of his cell, “surrounded by vomit.” (Id.)
EMS transported Fairbanks to the hospital, where he died at 12:02 p.m. (Id. ¶ 24.)
Although an initial autopsy concluded that Fairbanks’s cause of death was mixed drug
toxicity, a medical expert later concluded that Fairbanks had minimal controlled substances
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in his body, and that the cause of death was actually “volume loss from prolonged vomiting
and diarrhea,” which are symptoms of his angioedema. (Id. ¶ 25.)
On November 9, 2022, Johns was appointed as the trustee for the next of kin of
Fairbanks by a Minnesota state district court. (Doc. No. 29-1 at 2.)
B.

Post-Death Administrative Action
1.

Procedure for Presenting Claims to Federal Agencies

The Federal Tort Claims Act (FTCA) provides that a plaintiff is barred from suing
the United States for personal injury or wrongful death “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.” 28 U.S.C. § 2675(a). A claimant properly “presents the
claim” by providing the relevant U.S. agency with all of the following:
[1] an executed Standard Form 95[1] or other written
notification of an incident, . . . [2] a claim for money damages
in a sum certain for . . . personal injury, or death alleged to have
occurred by reason of the incident; and [3] the title or legal
capacity of the person signing, and . . . [4] evidence of [that
person’s] authority to present a claim on behalf of the claimant

The Standard Form 95 (SF-95), as its name suggests, is a standard form. The back of the
SF-95 includes instructions to fill out the form. (See, e.g., Doc. No. 29-2 at 5.) The
Instruction section advises that “[a] claim presented by an agent or legal representative
must be presented in the name of the claimant,” and that it “must show the title or legal
capacity of the person signing and be accompanied by evidence of his/her authority to
present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian
or other representative.” (Id.) It further refers to the applicable regulations: “Complete
regulations pertaining to claims asserted under the Federal Tort Claims Act can be found
in Title 28, Code of Federal Regulations, Part 14.” (Id.)

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as agent, executor, administrator, parent, guardian, or other
representative.
28 C.F.R. § 14.2(a). 2
A person bringing an FTCA claim on behalf of a decedent must provide evidence
that would be sufficient under relevant state law to show the person has authority to act on
behalf of the decedent. Id. at 803–04; see also Rollo-Carlson v. U.S., 971 F.3d 768, 770
(8th Cir. 2020) (“The extent of the United States’ liability under the FTCA is generally
determined by reference to state law.” (quotation omitted)). In Minnesota, only a courtappointed trustee may bring a wrongful death action. Minn. Stat. § 573.02; Christiansen
v. Univ. of Minn. Bd. of Regents, 733 N.W.2d 156, 159 (Minn. App. 2007). The FTCA
also requires that an attorney signing an SF-95 on behalf of a client provide proof of their
authority to act on behalf of their client. See Puetz v. U.S., No. 22-CV-02870 (SRN/DTS),
2023 WL 4186574, at *4–9 (D. Minn. June. 26, 2023).
2.

Presentment of Johns’s FTCA Claims

In September 2023, Johns’s attorney, Oliver Nelson, III, submitted an SF?95 to the
Department of the Interior (DOI) on behalf of Johns (on behalf of Fairbanks). (Doc. No.
29-2.) Nelson signed the SF-95; Johns did not. (See id. at 4.) Additionally, on the SF-95,
Nelson identified Johns as the claimant and that the basis of her FTCA claims was
Fairbanks’s May 2022 death while in custody at the RLDC. (Id.) The SF-95 was
accompanied by a cover letter from Nelson, in which he identified himself as the attorney

As discussed below, a plaintiff’s strict compliance with this requirement is a jurisdictional
precondition to filing an FTCA claim in federal court. Mader v. U.S., 654 F.3d 794, 805
(8th Cir. 2011).

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for “Nicole Johns, the mother of the late Joseph Fairbanks, Jr.” (Id. at 2.) In addition to
the cover letter and SF?95, Nelson enclosed sixty-two pages of supporting documents,
including a letter that Nelson had previously sent to a third party, in which he wrote that
“Ms. Johns has been appointed as trustee in a potential wrongful death case against the Red
Lake Tribe.” (Id. at 8.) Nelson did not enclose or otherwise provide a copy of the state
court order appointing Johns as the trustee of Fairbanks, which Johns had obtained
approximately ten months prior. (See generally Doc. No. 29-2.)
In March 2024, the DOI denied Johns’s claim. (Doc. No. 29-3.) In the notice of
claim denial, the DOI stated that it had “reviewed the above-referenced claim . . . submitted
. . . on behalf of your client—the Estate of Joseph Fairbanks,” and that, “[a]fter a complete
review of the claim file, we cannot determine that the United States is liable under the
FTCA or Minnesota law.” (Id. at 2.) The letter advised that Johns could elect to seek
reconsideration of the DOI’s decision at the agency level or pursue a claim in federal
district court. (Id.) Johns elected to pursue the second option—she filed suit.
C.

This Action

In May 2024, Johns filed this lawsuit. (Compl.) In her four-count Complaint, she
alleges that the United States, two now-voluntarily dismissed federal agencies, and several
federal employees 3 are liable for Fairbanks’s otherwise preventable death while in custody

3

The individual Defendants have not answered or otherwise appeared.
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at RLDC. 4 (See id.) Then, several weeks after filing suit, Nelson sent a letter to the DOI.
(See Doc. No. 23?3.) In it, Nelson wrote that he wished “to ensure that the documentation
for our client’s FTCA claim is complete and accurately reflects her legal capacity to act on
behalf of the estate.” (Id. at 1.) He enclosed the following two documents, which he asked
DOI to “add[] to the claim file”: (1) an Order from a Minnesota court that appointed Johns
as Fairbanks’s trustee; and (2) a copy of “the previously submitted Standard Form 95.”
(Id.; see also id. at 3, 4–6.)

The DOI declined to add the new documents to the

administrative claim file. (Doc. No. 23 ¶ 10.)
DISCUSSION
The United States now moves to dismiss the remaining claims against it—a
negligence claim and a wrongful death claim under the FTCA 5—for lack of subject-matter
jurisdiction. Specifically, the United States argues that Johns did not satisfy the FTCA’s
presentation requirements before filing suit, and, as a result, her claims are barred by the
doctrine of sovereign immunity. (Doc. No. 22.) Because the requirements of 28 C.F.R.
§ 14.2(a) were not timely satisfied, the Court grants the motion.
This Court “must” dismiss claims over which it lacks subject-matter jurisdiction.
Fed. R. Civ. P. 12(h)(3). A motion to dismiss under Federal Rule of Civil Procedure

Since the time this lawsuit was filed, Johns voluntarily dismissed all of her claims against
Defendants Bureau of Indian Affairs and the DOI. (Doc. No. 20.)
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Before the United States filed this motion, Johns voluntarily dismissed two claims against
the United States brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). (See Doc. No. 20.)

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12(b)(1) may present either a factual or facial challenge to the jurisdictional grounds of a
claim. Osborn v. U.S., 918 F.2d 724, 729–30 (8th Cir. 1990) (describing distinction
between factual and facial attacks to subject-matter jurisdiction). Because the instant
motion is best characterized as a factual challenge (see generally Doc. Nos. 22, 23), the
Court may consider factual matters outside of the pleadings, Osborn, 918 F.2d at 729, and
the “nonmoving party [does] not enjoy the benefit of the allegations in its pleadings being
accepted as true.” Branson Label, Inc. v. City of Bransen, 793 F.3d 910, 915 (8th Cir.
2015). Johns, as the plaintiff, bears the burden of proving that the Court has subject-matter
jurisdiction over her claims. Two Eagle v. U.S., 57 F.4th 616, 620 (8th Cir. 2023).
Sovereign immunity bars claims against the United States unless Congress has
waived the United States’s immunity. Hart v. U.S., 630 F.3d 1085, 1088 (8th Cir. 2011).
As a result, absent a waiver, a federal court has no subject-matter jurisdiction over claims
against the United States. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Congress waived
the United States’s sovereign immunity from certain tort claims by passing the FTCA. Ali
v. Fed. Bureau of Prisons, 552 U.S. 214, 217–18 (2008). One condition of that waiver is
proper presentation of a tort claim to the relevant federal agency prior to filing the FTCA
claim in federal court. 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(a). Proper presentation as a
jurisdictional prerequisite to suit serves a “practical purpose”: specifically, “it provides
federal agencies a fair opportunity to meaningfully consider, ascertain, adjust, determine,
compromise, deny, or settle FTCA claims prior to suit.” Mader, 654 F.3d at 800–01, 808.
The Eighth Circuit has admonished that it will neither extend nor narrow waivers to
sovereign immunity provided by Congress. Id. at 800.
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The United States raises two independent challenges to Johns’s presentment of the
claim to the DOI: (1) the presentment of the claim lacked evidence of Johns’s authority to
bring a claim on behalf of Fairbanks; and (2) the presentment lacked evidence of Nelson’s
authority to act on behalf of Johns. (Doc. No. 22 at 7–15.) The Court addresses each in
turn, concluding that both deficiencies preclude exercise of this Court’s jurisdiction.
A.

Johns’s Authority to Act on Behalf of Fairbanks

The United States first argues that Johns’s failure to provide evidence that she had
authority to act on behalf of Fairbanks before the final agency decision means that she did
not satisfy the presentation prerequisite to bringing her FTCA claims. (Id. at 9–12.)
Because Johns did not strictly comply with the requirement that a claimant submit evidence
of their authority to act on behalf of a decedent, binding Eighth Circuit precedent requires
the Court to agree with the United States.
When a plaintiff brings tort claims under the FTCA on behalf of a decedent, they
must timely provide evidence of their authority to act on behalf of the deceased. Mader,
654 F.3d at 803–04. This proof-of-authority requirement is “totally essential to meaningful
agency consideration.” Id. at 801. Under Mader v. U.S., the Eighth Circuit has made clear
that the plaintiff must have presented the relevant government agency with evidence that
they are authorized to bring such a claim on behalf of the deceased claimant before the
final agency decision or before filing suit and, if they do not, the United States will be
immune from suit. Accord 654 F.3d at 807 (“[A] claim that fails to satisfy § 2675(a)’s
requirements remains inchoate, unperfected, and not judicially actionable.”); Runs After v.
U.S., 511 Fed. App’x 596 (Mem.) (8th Cir. 2013) (affirming dismissal of FTCA wrongful
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death case where plaintiff did not include proof of authority to bring claim on behalf of
deceased to agency before filing suit); Rollo-Carlson v. U.S., No. 18-CV-2842
(ECT/ECW), 2019 WL 1243017, at *4 (D. Minn. Mar. 18, 2019) (concluding United States
was immune from FTCA claim for wrongful death where plaintiff did not present authority
to pursue claim until after filing suit in court).
Johns makes several arguments to the contrary. First, Johns argues that, in the
administrative claim, the DOI was notified that she was Fairbanks’s trustee; after all,
Nelson identified himself as the attorney for “Nicole Johns, the mother of the late Joseph
Fairbanks, Jr.” (Doc. No. 29-2 at 2.) This argument is not persuasive. A person submitting
an SF-95 is expressly required to provide “evidence of [their] authority to present a claim
on behalf of [a deceased person].” 14 C.F.R. § 14.2(a) (emphasis added). A claimant’s
say-so is not “evidence” as contemplated by section 14.2(a). E.g., Rollo-Carlson, 2019
WL 1243017, at *5 (rejecting plaintiff’s argument that agency’s actual notice of her status
as next-of-kin to decedent from her other interactions with agency satisfied proof-ofauthority requirement under FTCA); Runs After v. U.S., No. 10-CV-3019-RAL, 2012 WL
2951556, at *6 (D.S.D. July 19, 2012) (“There is nothing in . . . Mader to suggest that an
effort by an FTCA claimant that falls short of providing proof of representative authority
. . . is sufficient to avoid dismissal.”), aff’d, 511 Fed. App’x 596.
Johns also argues that, by the time she filed the SF-95 in September 2023, she had
already been appointed as Fairbanks’s wrongful-death trustee by a Minnesota state court,
which was a matter of public record and that Nelson’s cover letter adequately informed the
DOI that Johns was the trustee for Fairbanks. However, Johns offers no authority to
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support the implied proposition that the DOI had a duty to search public records to
determine whether any public records can effectively satisfy the proof-of-authority
requirement. Contrary to this proposition, the regulations expressly state that the materials
required to properly “present” an administrative action must be “receive[d] from a
claimant.” 28 C.F.R. § 14.2(a) (emphasis added).
Johns next argues that she did indeed provide the DOI with evidence of her authority
to bring a claim on behalf of Fairbanks by letter in June 2024 (after the DOI issued its final
decision and after she had filed this action). The fact that Nelson eventually sent the DOI
a copy of the Order appointing her as Fairbanks’s wrongful-death trustee does not spare
her claims. This is because 28 C.F.R. § 14.2 very clearly provides that, at the agency level,
a claim “may be amended by the claimant at any time prior to final agency action or prior
to the exercise of the claimant’s option [to file suit] under 28 U.S.C. [§] 2675(a).” 28
C.F.R. § 14.2(c) (emphasis added); see also McNeil v. U.S., 508 U.S. 106, 112 (1993)
(“Congress intended to require complete exhaustion of Executive remedies before
invocation of the judicial process.”). The later-provided proof of legal authority therefore
does not repair the proof-of-authority defect in Johns’s presentation of the administrative
claim. Accord Spanier v. U.S. Fish & Wildlife Serv., No. 21-CV-1618 (WMW/LIB), 2022
WL 2275828, at *2 (D. Minn. June 23, 2022) (concluding sovereign immunity barred
plaintiff’s FTCA claim because, by presenting proof of legal authority to act on behalf of
claimant to federal agency only after filing suit, plaintiff had not satisfied the FTCA’s
presentation requirement).

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Finally, Johns argues that, if the DOI had believed that Nelson had provided
insufficient information, it had a duty to request more information. (Doc. No. 28 at 9–11.)
However, Johns cites no authority to support this proposition, which has been rejected both
in this District and in other Courts in this Circuit. See Puetz, 2023 WL 4186574, at *7
(collecting cases). The DOI had no affirmative duty to ask Nelson to remedy defects it
may or may not have noticed in the underlying administrative claim.
Pursuant to Mader, the proof-of-authority requirement applies strictly, barring
relief. Johns’s administrative claim did not include evidence of her authority to act on
Fairbanks’s behalf, and as a result, the Court lacks jurisdiction to hear Johns’s claims.
B.

Attorney Nelson’s Authority to Act on Behalf of Johns

The United States also argues that it is immune from Johns’s tort claims because
Johns did not sign the SF-95 and did not provide “the title or legal capacity of the person
signing” (i.e., her attorney, Nelson), including “evidence of his authority to present a claim
on behalf of the claimant.” (Doc. No. 22 at 12–15 (citing 28 C.F.R. § 14.2(a)).) Again,
the case law concerning jurisdiction under the FTCA compels dismissal.
Although Mader did not involve evidence of an attorney’s authority to bring a claim
before a federal agency on a client’s behalf, the Eighth Circuit did not limit its holding to
non-attorney personal representatives, and even explained the rationale for extending its
holding to include attorneys. 654 F.3d at 803 (contemplating potential “representation
problems” in FTCA administrative claims as including attorney-client representations: “in
some cases up to four lawyers have attempted to present FTCA claims to federal agencies
on behalf of the same claimants”). The Eighth Circuit’s analysis focuses on settlement
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authority to explain that section 14.2(a) requires presentation of evidence that the person
filing a claim has the legal authority to act on behalf of the claimant: “agencies simply
cannot meaningfully consider FTCA claims with an eye towards settlement if
representatives fail to first present evidence of their authority to act on behalf of claims’
beneficiaries.”

Id.

In addition, the SF-95 form advises of this requirement in its

Instructions section, as well:
The claim may be filed by a duly authorized agent or other
legal representative, provided evidence satisfactory to the
Government is submitted with said claim establishing express
authority to act for the claimant.
(See Doc. 29-2 at 5.) Finally, this Court has previously held that the proof-of-authority
requirement in 28 C.F.R. § 14.2(a) also applies to attorneys who present claims on behalf
of their clients. See Puetz, 2023 WL 4186574, at *4–9 (concluding attorney signature on
SF-95 is not evidence of authority to represent claimant).
Here, the SF-95 is signed only by Nelson—Johns does not dispute this. Instead,
Johns argues that Nelson’s cover letter to the SF-95, in which Nelson advised that “[his]
law firm represents Nicole Johns,” satisfied the proof-of-authority requirement. (Doc. No.
28 at 11–12.) Johns asserts that this argument is consistent with the decision in Puetz. The
Court, however, does not agree with Johns’s characterization of Puetz. In that case, an
attorney emailed the agency attaching his client’s SF-95. Puetz, 2023 WL 4186574, at *8.
The email included the attorney’s “title and information about his firm.” Id. The Court
concluded this statement did not satisfy the proof-of-authority requirement because “it
omits an authorization from [the plaintiff] to act on his behalf.” Id. As in Puetz, and as
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indicated by the Eighth Circuit’s concerns in Mader, Nelson’s mere self-identification as
Johns’s attorney is not itself evidence of authority to act on Johns’s behalf and does not
constitute sufficient proof to satisfy the presentment requirement. Because the claim was
not properly presented to the DOI, this Court lacks subject-matter jurisdiction over Johns’s
tort claims. 6
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.

Defendant United States of America’s motion to dismiss for lack of subjectmatter jurisdiction (Doc. No. 21) is GRANTED;

2.

Counts I and II of the Complaint against the United States of America are
DISMISSED WITH PREJUDICE, but without regard to the merits of the
underlying claim; and

The Court acknowledges that the dismissal of Johns’s claims against the United States
due to attorney error is a harsh result. See Puetz, 2023 WL 4186574, at *9 (recognizing
that applying the evidence of authority requirement has “unfortunate and harsh results” but
observing that “the Eighth Circuit has time and again emphasized that the FTCA
presentment conditions are construed narrowly and can only be satisfied with strict
compliance” (quotation omitted)); see also E.M. v. United States, No. 2:19-CV-4221MDH, 2020 WL 6947681, at *3 (W.D. Mo. Nov. 25, 2020) (acknowledging that dismissal
of FTCA claims for non-compliance with presentment requirement was “harsh and
unfortunate given the facts of this case”); Runs After, 2012 WL 2951556, at *8
(acknowledging that dismissal of FTCA claim for defects in presentment-of-authority
requirement to be “harsh” but required by Eighth Circuit precedent). The Court cannot
ignore binding precedent to reach a different result.
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3.

Defendant United States of America is DISMISSED from this action.

Dated: March 5, 2025

/s/ Jeffrey M. Bryan
Judge Jeffrey M. Bryan
United States District Court

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