Davis v. Department of Health and Human Services

Filing 9

MEMORANDUM AND ORDER. (see order for details) The limitations period expired on September 20, 2013. In her response memorandum, plaintiff does not make any allegation that she did not receive timely notice of the agency's final disposition of her tort claim. As a result, the Court lacks the authority to hear this action, and this case must be dismissed for want of jurisdiction under Rule 12(h)(3) of the Federal Rules of Civil Procedure. Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel is DENIED as moot. A separate Order of Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on 11/20/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PATRICIA MARIE DAVIS,
Plaintiff,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendant.

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No. 4:13CV2217 TCM

MEMORANDUM AND ORDER
The Court ordered plaintiff to show cause why this action should not be
dismissed, and plaintiff has filed her response. After careful review, the Court finds
that this action must be dismissed for lack of jurisdiction.
Plaintiff brings this case pursuant to the Federal Torts Claim Act, 28 U.S.C.
§§ 2671-2680 (the “FTCA”). Plaintiff alleges that a doctor working at a federally
supported health care facility negligently prescribed her an overdose of blood
pressure medication, which gave her an arrhythmia and raised her blood pressure.
Plaintiff maintains that her FTCA claim was denied by the agency on March 20,
2013. She filed the instant complaint on October 30, 2013.
Under 28 U.S.C. § 2401(b), a “tort claim against the United States shall be
forever barred unless . . . [a civil] action is begun within six months after the date of

mailing, by certified or registered mail, of notice of final denial of the claim by the
agency to which it was presented.” A “plaintiff’s compliance with the statute of
limitations is prerequisite to the district court’s jurisdiction over a suit against the
United States under the FTCA.” T.L. v. United States, 443 F.3d 956, 961 (8th Cir.
2006).
The limitations period expired on September 20, 2013. In her response
memorandum, plaintiff does not make any allegation that she did not receive timely
notice of the agency’s final disposition of her tort claim. As a result, the Court lacks
the authority to hear this action, and this case must be dismissed for want of
jurisdiction under Rule 12(h)(3) of the Federal Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel is DENIED as moot.
A separate Order of Dismissal will be filed forthwith.
Dated this 20th day of November, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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