Davis v. John Cochran Veterans Administration Medical Center
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion To Dismiss Plaintiff's Complaint 11 is GRANTED. This matter is dismissed, without prejudice to refiling after Plaintiff exhausts her administrative remedies. The Clerk is directed to close the case. IT IS FURTHER ORDERED that Plaintiff's Motion For Appointment Of Counsel And Affidavit In Support 2 is DENIED, as moot. A separate Order of Dismissal will be entered this day. Signed by Magistrate Judge John M. Bodenhausen on 11/22/16. (CAR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CORYESHA LAVONDA DAVIS,
UNITED STATES OF AMERICA,
No. 4:16 CV 819 JMB
MEMORANDUM AND ORDER
This matter is before the Court on consideration of Defendant’s Motion To Dismiss
Plaintiff’s Complaint. (ECF No. 11) In the motion, Defendant argues that this Court does not
have subject-matter jurisdiction over Plaintiff’s Complaint because the Court has construed
Plaintiff’s Complaint to be a cause of action under the Federal Tort Claims Act (“FTCA”), and
Plaintiff has failed to exhaust her administrative remedies, as required under the FTCA.
The Court agrees with Defendant that Plaintiff has not shown that she has presented this
claim to the Veteran’s Administration, as required under 28 U.S.C. § 2675(a). This failure to
exhaust administrative remedies deprives the Court of subject-matter jurisdiction. See Mader v.
United States, 654 F.3d 794, 805 (8th Cir. 2011) (en banc) (holding that compliance with
administrative exhaustion is a “jurisdictional precondition to filing an FTCA suit in federal
district court”). Therefore, the Court will dismiss Plaintiff’s Complaint.
The Court also holds that is appropriate to dismiss this matter due to Plaintiff’s failure to
comply with its order dated October 11, 2016. (See ECF No. 15) That order discussed the
Court’s concern that it lacked jurisdiction due to Plaintiff’s failure to exhaust remedies, and the
order required Plaintiff to demonstrate subject-matter jurisdiction by October 25, 2016. The
Court has not heard from Plaintiff since that time. The Court also notes that Plaintiff may refile
this lawsuit after she exhausts her administrative remedies.
IT IS HEREBY ORDERED that Defendant’s Motion To Dismiss Plaintiff’s Complaint
(ECF No. 11) is GRANTED. This matter is dismissed, without prejudice to refiling after
Plaintiff exhausts her administrative remedies. The Clerk is directed to close the case.
IT IS FURTHER ORDERED that Plaintiff’s Motion For Appointment Of Counsel And
Affidavit In Support (ECF No. 2) is DENIED, as moot.
A separate Order of Dismissal will be entered this day.
/s/ John M. Bodenhausen
UNITED STATES MAGISTRATE JUDGE
Dated this 22nd day of November, 2016
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