Telford v. USA
MEMORANDUM OPINION - The government's motion for dismissal under Federal Rule of Civil Procedure 12(b)(3) 26 will be granted. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy e-mailed to pro se party)(GJG) Modified on 10/8/2014 to correct entry to reflect copy e-mailed to pro se party rather than mailed (GJG).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
This matter is before the Court on the motion (Filing
No. 26) of the defendant to dismiss this action pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(3).
the plaintiff requested three extensions to respond to the
defendant’s motion and the Court granted each of those motions
and prolonged motion practice for five months, the plaintiff
still has not filed a response (Filing No. 29, Filing No. 30,
Filing No. 31, Filing No. 32, Filing No. 33, Filing No. 34).
Therefore, the Court will rule on the defendant’s motion without
the plaintiff’s response.
After review of the defendant’s
motion, brief, index of evidence, and relevant case law, the
Court finds as follows.
Plaintiff Holli Telford (“Telford”) (a.k.a. Hollie
Telford, Holli Lundahl, Hollie Lundahl) brings action against the
defendant, the United States government, under the Federal Tort
Claims Act (“FTCA”).
Telford filed her complaint on January 22,
2013 (Filing No. 1) and amended her complaint on July 30, 2013
(Filing No. 14).
She seeks $2 million dollars for assault,
negligence, health care liability, premise liability, and
intentional infliction of emotional distress under the FTCA
Telford alleges that she was wrongfully imprisoned at the
Carswell Women’s Prison in Fort Worth, Texas, in 2006 and 2007
(Id. at 4).
Telford alleges that an inmate assaulted her while
she was in custody there and that the assault caused her to lose
eight teeth (Id.).
Telford alleges that the mental ward
supervisor at the prison impeded her ability to receive treatment
though the supervisor knew Telford was exposed to serious heart
risks because of the broken teeth and congestive heart failure
(Id. at 5).
Telford further alleges that she experienced strokes
while in custody in Texas and Utah due to government agents
falsifying her medical records and impeded her ability to receive
care (Id. at 5-9).
In the instant motion, the government seeks dismissal
on two grounds.
First, the government argues Telford failed to
exhaust her administrative remedies as required by Title 28
Section 2675(a) and therefore dismissal for lack of subject
matter jurisdiction is appropriate.
Second, the government
argues Nebraska is an improper venue in Nebraska because Telford
was a resident of Wyoming during the filing of this action and
her injuries occurred in Texas and Utah; therefore, dismissal for
improper venue is appropriate.
The Court has an obligation to consider sua sponte
whether it has subject matter jurisdiction over a case.
v. United Steelworkers Local 1938, 743 F.3d 1134, 1139 (8th Cir.
The Court "must raise jurisdictional issues 'when there
is an indication that jurisdiction is lacking, even if the
parties concede the issue.'”
Id. (quoting Thomas v. Basham, 931
F.2d 521, 523 (8th Cir. 1991)).
Suits are subject to dismissal
when the court lacks subject matter jurisdiction to hear the
Fed. R. Civ. P. 12(b)(1).
The party asserting
jurisdiction bears the burden of proving that jurisdiction is
Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988
(8th Cir. 2010).
When considering a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(3), the Court is not required to accept
the pleadings as true and may consider facts outside the
Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324
(9th Cir. 1996); Ameristar Casino Kansas City, Inc. v. Tai Ping
Carpets Americas, Inc., 2013 WL 6512482, at *1 (W.D. Mo. Dec. 12,
A defendant moving to dismiss under 12(b)(3) bears the
burden of demonstrating that the plaintiff’s choice of venue is
United States v. Orshek, 164 F.2d 741, 742 (8th Cir.
LACK OF SUBJECT-MATTER JURISDICTION
The FTCA states “[a]n action shall not be instituted
upon a claim against the United States for money damages for
injury . . . unless the claimant shall have first presented the
claim to the appropriate Federal agency and [her] claim shall
have been finally denied by the agency in writing and sent by
. . . mail. . . .”
28 U.S.C. § 2675(a).
In the Eighth Circuit,
“[a]n action may not be commenced in federal court under the FTCA
unless the plaintiff has first presented [her] claim to the
appropriate federal agency, and that claim has been denied.”
McCoy v. United States, 264 F.3d 792, 794 (8th Cir. 2001).
In October 2008, the Department of Justice, Civil
Division, Federal Tort Claims Act Staff, received a claim and an
amendment from Telford.
Filing No. 27-1, at 1-2, ¶¶ 3, 6.a, 6.c.
Telford has submitted to this Court a purported copy of a letter
dated in 2009 from a claims adjuster from the Civil Division Tort
Branch, Khlayer Graves-Sowell (“Grave-Sowell”), which
acknowledges the receipt of a third amended claim -- the only
claim which mentions Telford’s dental issues (Id. at ¶¶ 3, 5, 6).
Importantly, Graves-Sowell has submitted an affidavit to this
Court which states that her department never received this third
amendment and Grave-Sowell was not employed at the department at
the time this document was purportedly sent to Telford.
unrebutted document casts serious doubts on the authenticity of
Telford’s submission to this Court and weighs heavily in favor of
a finding of fraud.
The government has submitted several
instances in which courts have uncovered Telford’s apparent
Filing No. 28, at 12-13 (citing Johnson v.
Lundahl, 2005 WL 1349963, at *4 (10th Cir. June 8, 2005); Lundahl
v. NAR Inc. (hereinafter “NAR”), 434 F. Supp. 2d 855, 859 (D.
Idaho 2006); Caffree v. Lundahl, 143 Fed. Appx. 102, 106 (10th
Cir. 2005); Lundahl v. Pub. Storage Mgmt., Inc., 62 Fed. Appx.
217 (10th Cir. 2003).
See also NAR, 434 F. Supp. 2d at 856
(citing as other fraudulent and frivolous actions Telford v.
Brown (also known as Hurst v. Brown), 4:05CV460 (D. Idaho April
7, 2006); Los Angeles Home–Owners Aid, Inc. v. Lundahl,
4:05CV126, 2005 WL 1140649 (D. Idaho May 13, 2005); Lundahl v.
CNA Ins., No. 20010845, 2003 WL 22145999 (Utah App. 2003); et
The Court finds that Telford has failed her burden of
establishing that she presented her claim regarding her dental
issues to the appropriate agency.
Therefore, the government’s
motion for dismissal under Federal Rule of Civil Procedure
12(b)(1) will be granted.
“[C]ivil action on a tort claim against the United
States . . . may be prosecuted only in the judicial district
where the plaintiff resides or wherein the act or omission
complained of occurred.”
28 U.S.C. § 1402(b).
None of the
actions Telford alleges occurred in the Nebraska.
Telford must have been a resident of Nebraska when she filed her
First, the Court notes that since the filing for her
claim, Telford now claims residence in Wyoming.
Filing No. 33.
However, Telford claimed residence in Wyoming only days before
she filed her complaint in Nebraska.
action on January 22, 2013.
Telford filed the instant
Filing No. 1.
On January 16, 2013,
Telford filed a claim in Teton County District Court for the
Ninth Judicial District which was later removed to the federal
district court of Wyoming.
Filing No. 28-1.
the government attempted to reach Telford at her purported
Nebraska domicile, all correspondence was returned as
Filing No. 28, at 15.
With these facts in mind,
the Court finds that Telford was not a resident when she filed
the instant action and venue is improper.
government’s motion for dismissal under Federal Rule of Civil
Procedure 12(b)(3) will be granted.
A separate order will be
entered in accordance with this memorandum opinion.
DATED this 8th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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