Howell v. United States of America

Filing 28

ORDER denying without prejudice to renew 12 Motion to Dismiss for Lack of Jurisdiction, denying 16 Motion for Leave to File Motion for Summary Judgment and denying 26 Motion for Sanctions. Signed by Senior Judge James C. Fox on 5/29/2015. Order sent to Burl Anderson Howell, 207 Dobbs Drive, La Grange, NC 28551 via US Mail on 5/29/2015. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-898-F

BURL ANDERSON HOWELL,
Plaintiff,

v.
UNITED STATES OF AMERICA,
Defendants.

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ORDER

This matter is before the court on the Government's Motion to Dismiss [DE-12] for lack of
jurisdiction, and the Motion for Leave to File Motion for Summary Judgment [DE-16] and Motion
for Sanctions [DE-26] filed by the pro se Plaintiff. For the reasons stated below, the Motion to
Dismiss [DE-12] and Motion for Leave [DE-16] are both DENIED without prejudice to renew, and
the Motion for Sanctions [DE-12] is DENIED.
Plaintiff initiated this action by filing application to proceed in forma pauperis under 28
U.S.C. § 1915 [DE-l]. In an order filed on January 21, 2015 [DE-4], the court allowed Plaintiffs
application and determined that Plaintiffs proposed complaint was sufficient to survive review
under 28 U.S.C. § 1915(e)(2). On March 10, 2015, the Government filed its motion to dismiss,
arguing that it appeared that Plaintiff was attempting to pursue a claim under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. § 2671, et seq., but had failed to exhaust his administrative remedies.
As a sovereign, the United States '"is immune from suit save as it consents to be sued ...
, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the
suit."' United States v. Mitchell, 445 U.S. 535,538 (1980) (quoting United States v. Sherwood, 312
U.S. 584, 586 (1941)). The FTCA affords a limited, conditional waiver of sovereign immunity by

the United States government for certain torts of federal government employees committed within
the scope of their employment. See 28 U.S.C. §§ 2671 et seq; 1 see also FDIC v. Meyer, 510 U.S.
471, 475 (1994). The FTCA specifically requires, however, that before an action may be instituted
in court, a claimant must first present his claim to the appropriate administrative agency for
determination. See 28 U.S.C. § 2675(a); see alsoAhmedv. United States, 30 F.3d 514,516 (4th Cir.
1994). Additionally, the claim must "have been finally denied by the agency in writing and sent by
certified or registered mail" prior to the institution of the action in court. § 2675(a). "The failure
of an agency to make final disposition of a claim within six months after it is filed shall, at the option
of the claimant at any time thereafter, be deemed a final denial of the claim ...." Id It is wellestablished that "the requirement of filing an administrative claim is jurisdictional and may not be
waived." Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986).
In its motion, the Government argues that "the plaintiff has not alleged in his complaint that

he complied with the administrative claim requirement and pursued his grievance through all levels
before brining this medical malpractice claim against U.S. Department of Veteran Affairs
employees." Mem. in Support of Mot. to Dismiss [DE-13] at 2-3. The Government references an
October 31, 2014, letter from the Office of Regional Counsel to Plaintiff stating that Plaintiffs
administrative tort claim was received on October 27, 2014. Id at 3 (citing Attachment to Complaint
[DE-5-1]).
The court recognizes that the Office of Regional Counsel sent the letter to Plaintiff. The

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That section specifically provides that "the district courts shall have exclusive jurisdiction of civil
action on claims against the United States, for money damages ... for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances where the United States, if
a private person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred."

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court also observes, as Plaintiff points out in his numerous responses to the motion to dismiss, that
Plaintiff specifically alleges in the complaint that the Government received his administrative claim
and that it was closed. Compl. [DE-5] at p. 1. Plaintiff attaches to his complaint a claim dated
January 10, 2014, as well as a print-out showing that the claim was closed on December 11, 2014.
See Attachment to Compl. [DE-5-1] at 1-2, 32. The Government did not file a reply to Plaintiff's

responses addressing his contention that the filing of the January 10, 2014 claim served to exhaust
his administrative remedies.
On the record, without further explanation, the court cannot find that Plaintiff failed to
exhaust his administrative remedies. See 28 U.S.C. § 2675(a) (providing that the failure of an
agency to dispose of a claim within six months of its filing constitutes a denial of the claim for
purposes of exhausting administrative remedies). Accordingly, the Government's motion [DE-12]
is DENIED without prejudice to renew. 2
Plaintiff also seeks leave to file a motion for summary judgment. The court finds such a
motion to be premature, and it too [DE-12] is DENIED without prejudice. Finally, to the extent
Plaintiff seeks relief in his motion for sanctions [DE-16] it too is denied. The court can discern no
basis on which it could impose sanctions on the Government.
SO ORDERED.

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This the;)..«\ day of May, 2015.

c;!AMESC.FOX
Semor Umted States District Judge

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A party, or the court, may raise the issue of subject matter jurisdiction at any time. Accordingly,
the court denies the Government's motion without prejudice to renew and present further explanation or
argument as to why Plaintiff has failed to exhaust his administrative remedies.

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