Davis v. United States of America
Filing
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Memorandum Opinion and Order: Defendant's 4 motion to dismiss is GRANTED. This case is DISMISSED WITHOUT PREJUDICE. Judge Charles Esque Fleming on 1/29/2025. (S,SR)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TONY DAVIS,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
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CASE NO. 1:24-CV-1045
JUDGE CHARLES E. FLEMING
MEMORANDUM OPINION AND
ORDER
On June 28, 2024, Defendant moved to dismiss this case pursuant to Fed. R. Civ. P.
12(b)(6) for Plaintiff’s failure to exhaust administrative remedies before filing suit, as required by
the Federal Tort Claims Act (“FTCA”). (ECF No. 4, PageID #31). Plaintiff cannot institute an
action against the United States under the Federal Tort Claims Act without first presenting the
claim to the appropriate federal agency and having final denial of the claim, or after six months
pass after the administrative filing, whichever is sooner. 28 U.S.C. § 2675(a). Defendant argues
that Plaintiff did not file his administrative tort claim until May 13, 2024 (ECF No. 4, PageID #39),
which was one day before this case was filed on May 14, 2024 in the Cuyahoga County Court of
Common Pleas. (Id. at PageID #32). The matter was removed to this Court on June 21, 2024.
(ECF No. 1).
On July 11, 2024, Plaintiff responded to Defendant’s motion. (ECF No. 5). Plaintiff agrees
a dismissal without prejudice is proper, but requests that the Court make two judicial findings to
ensure that Plaintiff’s claim is not inadvertently time-barred through dismissal. (Id. at PageID
#40). Plaintiff requests that the Court make an affirmative finding “that the administrative claim
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was timely filed on May 13, 2024 and that Candance Taylor was a federal employee acting within
the course and scope of her employment at the time of the incident with the Plaintiff.” (Id. at
PageID #43).
“A tort claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C.
§ 2401(b). The underlying tort claims arise from a May 17, 2022 motor vehicle accident. (ECF
No. 1, PageID #7). The Government submitted a declaration stating that the Department of
Veteran Affairs received an administrative tort claim from Plaintiff on May 13, 2024 seeking
damages related to that motor vehicle accident. (ECF No. 4, PageID #39). Thus, Plaintiff filed
the administrative tort claim within two years of the claim accruing.
The Government submitted a certification by the United States Attorney that Candace
Taylor “was a federal employee acting in the course and scope of her employment and duties at
the time of the incidents alleged in the complaint.” (ECF No. 1, PageID #19). The Government
also conceded that fact in its motion to dismiss. (ECF No. 4, PageID #34). Thus, the Court takes
judicial notice that Candace Taylor was a federal employee acting within the course and scope of
her employment at the time of the incident with Plaintiff.
Defendant’s motion to dismiss is GRANTED. This case is DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
Date: January 29, 2025
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CHARLES E. FLEMING
UNITED STATES DISTRICT JUDGE
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