Spinazzola v. United States of America

Filing 10

OPINION AND ORDER by Judge Gregory K Frizzell ; dismissing/terminating case (terminates case) ; granting in part 6 Motion to Dismiss for Failure to State a Claim (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DAVID SPINAZZOLA,
Plaintiff,
v.

Case No. 19-CV-165-GKF-FHM

UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
Before the court is the Motion to Dismiss of defendant United States of America. [Doc.
6]. For the reasons set forth below, the motion is granted in part as to plaintiff’s medical negligence
claims. Plaintiff’s remaining negligent hiring and supervision claims are dismissed sua sponte for
lack of subject matter jurisdiction.
I. Background
This lawsuit arises out of the alleged failure of plaintiff’s physicians to inform him of and
treat a pancreatic tumor that was first identified in September 2016. The complaint contains the
following allegations. 1 Plaintiff David Spinazzola is a veteran of the United States Air Force who
served from 1971 to 1976. [Doc. 2, p. 2 ¶ 8]. In December 2015, Mr. Spinazzola sought treatment
for abdominal discomfort at the Ernest Childers Department of Veterans Affairs Outpatient Clinic
(“Childers VA”) in Tulsa, Oklahoma. [Id., ¶ 10]. Mr. Spinazzola’s gastroenterologist performed
a physical examination and ordered an ultrasound. [Id., ¶¶ 10-11]. Mr. Spinazzola was told that
the results of the abdominal ultrasound were negative. [Id., ¶ 12].

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In its consideration of motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) and
12(b)(1), the court “accept[s] as true all well-pleaded factual allegations in the complaint and
view[s] them in the light most favorable to the [plaintiff].” Garling v. United States Environmental
Protection Agency, 849 F.3d 1289, 1292 (10th Cir. 2017) (citations omitted).

Several months later, Mr. Spinazzola reported to Jodie Popp, a Physician’s Assistant at the
Childers VA, that his abdominal discomfort continued. [Id., pp. 2-3 ¶¶ 13-14]. Ms. Popp ordered
an abdominal C.T. scan, which was performed on September 15, 2016. [Id., p. 3 ¶¶ 14, 16]. A
radiologist reviewed the C.T. scan, determined that a tumor was growing on Mr. Spinazzola’s
pancreas, and concluded that immediate follow-up was needed. [Id., ¶ 17]. Ms. Popp did not
report the results of the C.T. scan to Mr. Spinazzola, nor did she follow-up with Mr. Spinazzola
on a course of treatment. [Id., ¶¶ 18-19]. “Mr. Spinazzola, believing the results of the C.T. scan
were negative based on the failure of the V.A. to notify him of a positive result, continued to suffer
severe symptoms of the tumor growing in his abdomen, including pain, nausea, and weight loss.”
[Id., ¶ 21].
Mr. Spinazzola finally learned of the tumor when his pulmonologist ordered a chest x-ray
performed on May 5, 2017. [Id., p. 4 ¶¶ 23-24]. The x-ray revealed a mass on Mr. Spinazzola’s
pancreas which was confirmed that same day by a second C.T. scan to be a tumor. [Id., ¶ 24]. At
a June 30, 2017 meeting, the VA allegedly “admitted they had failed to notify Mr. Spinazzola of
the tumor on his pancreas after the September 2016 C.T. scan.” [Id., ¶ 26].

Mr. Spinazzola

underwent surgery to remove the tumor on August 11, 2017. [Id., ¶ 27]. Mr. Spinazzola alleges
that he “suffered physical pain and suffering, mental anguish and emotional distress, lost earnings
and wages, and will suffer additional damages moving forward as a result of the V.A.’s delay in
treating the tumor first identified in September 2016.” [Id., ¶ 29].
Mr. Spinazzola filed this lawsuit on March 29, 2019 for (1) medical negligence, (2)
negligent hiring, and (3) negligent supervision. [Id., pp. 5-6 ¶¶ 30-46]. Defendant filed the instant
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) “for failure to state a claim upon which
relief can be granted as Plaintiff’s Complaint is time-barred.” [Doc. 6, p. 1].

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II. Legal Standard
The Federal Tort Claims Act (“FTCA”) “is a limited waiver of sovereign immunity,
making the Federal Government liable to the same extent as a private party for certain torts of
federal employees acting within the scope of their employment.” Lopez v. United States of
America, 823 F.3d 970, 975-76 (10th Cir. 2016) (quoting United States v. Orleans, 425 U.S. 807,
813 (1976)). Section 2401(b) of the FTCA “bars any tort claim against the United States unless it
is presented to the appropriate federal agency within two years of the claim’s accrual, and filed
within six months after notice of denial of the claim by that agency.” In re Franklin Savings Corp.,
385 F.3d 1279, 1287 (10th Cir. 2004) (citing 28 U.S.C. § 2401(b)). “Section 2401(b) is not a
jurisdictional requirement.” United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1633 (2015).
Rather, “timeliness is an affirmative defense,” and “[i]f the allegations . . . show that relief is barred
by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a
claim.” Chance v. Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018) (quoting Jones v. Bock, 549 U.S.
199, 215 (2007)).
Generally, “[a] 12(b)(6) motion must be converted to a motion for summary judgment if
‘matters outside the pleading[s] are presented to and not excluded by the court.’” GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Fed. R. Civ.
P. 12(b)). “[C]onversion to summary judgment when a district court considers outside materials
is to afford the plaintiff an opportunity to respond in kind. When a complaint refers to a document,
and the document is central to the plaintiff’s claim, the plaintiff is obviously on notice of the
document’s contents, and this rationale for conversion to summary judgment dissipates.” Id. at
1385. For that reason, “if a plaintiff does not incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a

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defendant may submit an indisputably authentic copy to the court to be considered on a motion to
dismiss.” Id. at 1384 (citing cases).
Such is the case here. The United States attached five exhibits to its motion, three of which
the court may consider without treating the motion as one for summary judgment: plaintiff’s
Standard Form 95, Claim for Damage, Injury or Death (“SF-95”) dated October 18, 2017 [Doc. 61]; (2) plaintiff’s second SF-95 received December 12, 2018 [Doc. 6-4]; and (3) a letter from the
VA dated January 3, 2019. [Doc. 6-5]. These documents are essential to show whether Mr.
Spinazzola “has complied with and otherwise satisfied the prerequisites established under the
[FTCA].” [See Doc. 2, pp. 1-2 ¶ 4 (referencing all three documents)]. Plaintiff does not dispute
the contents or authenticity of these exhibits, attaching all three to his response brief. [See Docs.
8-1, 8-3, 8-4]. For these reasons, the three documents are not “outside the pleadings” for purposes
of defendant’s 12(b)(6) motion and the court may consider them without treating the motion to
dismiss as one for summary judgment. GFF Corp., 130 F.3d at 1385; Prager v. LaFaver, 180
F.3d 1185, 1189 (10th Cir. 1999) (“[I]f a defendant attaches to a 12(b)(6) motion materials referred
to by the plaintiff and central to his claim, the court has discretion to consider such materials.”).
III. Analysis
Before an action may be brought against the United States for money damages for personal
injury caused by the negligent act or omission of a government employee, plaintiffs “shall have
first presented the claim to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). To
that end, Mr. Spinazzola sent his first SF-95 to the VA in October 2017 alleging medical
negligence:
Mr. Spinazzola’s treating physicians failed to inform him of, or treat, a pancreatic
tumor after it was first identified in September of 2016. Mr. Spinazzola continued

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in doctors’ care for another year, which resulted in additional needless pain and
suffering, before the tumor was ultimately identified. Doctors then performed a
Pancreaticoduodenectomy. Doctors confirmed that the tumor grew approximately
1.5 additional centimeters from the time of the initial discovery until ultimately
removing the tumor.
[Doc. 6-1, p. 1; accord Doc. 8-1, p. 1]. Mr. Spinazzola concedes that the VA informed plaintiff
that his administrative tort claim was denied on May 1, 2018. [Doc. 8, p. 3 (“Defendant denied
Mr. Spinazzola’s claim related to vicarious liability on May 1, 2018.”)]. Mr. Spinazzola sent a
second SF-95 to the VA in December 2018. [See Doc. 6-4; accord Doc. 2, pp. 1-2 ¶ 4]. The
second SF-95 contained the following allegations:
The Muskogee VA finally ordered a CT Scan of Mr. Spinazzola’s abdomen on
September 15, 2016. The CT Scan showed a tumor growing on Mr. Spinazzola’s
pancreas that required immediate medical treatment. Despite this urgent finding,
no person at the VA Medical Center told Mr. Spinazzola that the CT Scan had
revealed a tumor. Further, no one at the VA Medical Center followed up with
previously discussed medical care of Mr. Spinazzola’s abdominal complaints.
On June 30, 2017, Mr. Spinazzola was finally alerted that he had a tumor growing
on his pancreas that would require surgical intervention. The tumor was revealed
by a follow up CT Scan after a chest X-Ray looking for potential lung cancer had
detected the mass in his abdomen. By the time the VA Medical Center alerted Mr.
Spinazzola that he had a tumor growing on his pancreas, the tumor had grown in
size, he had physically suffered for many months, [and] had been unable to maintain
employment due to the abdominal symptoms.
[Doc. 6-4, p. 3; accord Doc. 8-3, p. 3]. Mr. Spinazzola also alleged that the VA had breached its
duty of care to hire, supervise, and train its medical providers, which he contended caused him
damages. [Id.]. On January 3, 2019, the VA informed Mr. Spinazzola by letter that it construed
his second SF-95 as an untimely request for reconsideration of its May 2018 decision. “A request
for reconsideration must be received within six (6) months from the date of denial. Because your
correspondence was received more than six (6) months after the date of denial, your request was
not timely filed.” [Doc. 6-5, p. 1; accord Doc. 8-4, p. 1]. According to the letter, the VA took no
action because it “no longer ha[d] jurisdiction” to do so. [Id.].

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Defendant argues that, under the FTCA, Mr. Spinazzola was required to file his lawsuit in
federal court within six months of the denial of his first administrative claim, or by November 1,
2018. [Id. at p. 7]. Because the Complaint was not filed until March 29, 2019, defendant argues,
it is time-barred. [Id.]. Mr. Spinazzola raises two arguments in response. The court considers
each in turn.
A. The FTCA’s Timeliness Requirements
Mr. Spinazzola first argues that the FTCA requires a complaint be filed either within six
months of the administrative denial or within two years of the claim’s accrual. [Doc. 8, p. 8-9].
Because he filed his Complaint within two years of being notified of the VA’s mistake, he contends
that the Complaint is timely in its entirety. [Id., p. 9]. He argues that “[t]he plain language of the
FTCA permits claims to be brought within two years or within six months of the denial even if the
statute of limitations has expired (so long as the claim itself was timely made).” [Id.]. But Mr.
Spinazzola does not point to any case law interpreting the FTCA in this way.
Section 2401(b) provides:
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 or unless 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.
The FTCA “provides that a tort claim against the United States ‘shall be forever barred’ unless [1]
it is presented to the ‘appropriate Federal agency within two years after such claim accrues’ and
then [2] brought to federal court ‘within six months’ after the agency acts on the claim.” Kwai
Fun Wong, 135 S. Ct. at 1629 (quoting 28 U.S.C. § 2401(b)). Per the first clause, any tort claim
against the United States will be barred unless claimants present their claim in writing to the
appropriate federal agency within two years of the claim’s accrual. See Cannon v. United States,
338 F.3d 1183 (10th Cir. 2003) (landowners’ claims against the United States for failure to clean
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up World War II weapons testing site was time-barred for failure to present their claims to the
agency within 2 years of the claims’ accrual). The second clause requires claimants to initiate
action in federal court within six months of that agency’s denial, or else the tort claim will be
barred. See Barnes v. United States, 776 F.3d 1134, 1142-43 (10th Cir. 2015) (finding lawsuit
filed more than six months after agency’s formal denial of claim time-barred). Claimants must
comply with both requirements in order to satisfy the limited conditions upon which the United
States has consented to be sued. See Lopez, 823 F.3d at 976 (“This unequivocal waiver of
immunity must be construed narrowly and the limitations and conditions upon which the
Government consents to be sued must be strictly observed and exceptions thereto are not to be
implied.” (citation omitted)); see also 14 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure, § 3658 (4th ed. 2019) (Section 2401(b) “sets forth two deadlines.”).
Mr. Spinazzola’s argument to the contrary is unpersuasive. He cannot choose which prong
of 28 U.S.C. § 2401(b) to satisfy—he must satisfy both. The question before the court is whether
Mr. Spinazzola initiated this action “within six months . . . of notice of final denial of [his] claim
by the agency to which it was presented.” See 28 U.S.C. § 2401(b). The answer is unaffected by
his timely “present[ation] in writing to the appropriate Federal agency within two years after such
claim accrues.” See id.
B. The Scope of the Administrative Claim
Mr. Spinazzola next argues that, because the first SF-95 did not allege sufficient facts to
put the VA on notice to investigate his negligent hiring and supervision claims, any deadline
triggered by the first SF-95 does not extend to his negligent hiring and supervision claims. [Doc.
8, pp. 5-8]. He contends the deadline to file the Complaint on his negligent hiring and negligent
supervision claims was 180 days from when he received the second VA letter. [Id., p. 8]. In reply,

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defendant argues that the plaintiff cannot “restart the clock” by filing a second administrative claim
that is the functional equivalent of the first. [Doc. 9, pp. 3-4].
There is scant case law evaluating whether a successive administrative claim is the
functional equivalent of the first. See Roman-Cancel v. United States, 613 F.3d 37, 42 (1st Cir.
2010) (noting the “few cases” considering the issue). What case law there is suggests that plaintiffs
cannot avoid the timing limitations of the FTCA by submitting a new claim that is the functional
equivalent of the first. Roman-Cancel, 613 F.3d at 42; see also Pedro v. Smith, No. 11-cv-02746CBS, 2012 WL 4442805, at *9 (D. Colo. Sept. 26, 2012) (“Where a party files duplicative
administrative claims, the court may regard the second claim as either an attempt to re-file the
original claim or an attempt to have the agency reconsider its disposition of the original claim.”
(internal quotation marks and citation omitted)). “[H]onoring a re-filed claim would frustrate the
goal of the FTCA’s filing deadlines.” Roman-Cancel, 613 F.3d at 42. The court agrees Mr.
Spinazzola’s claim for medical negligence is untimely, having been filed more than six months
after the final administrative denial of that claim. 2 However, the same cannot be said for Mr.
Spinazzola’s negligent hiring and supervision claims.

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Mr. Spinazzola argues that, because he filed the Complaint within two years of his medical
negligence claim’s accrual, the court should apply equitable tolling. [Doc. 8, p. 10]. “Generally,
a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his
way.” Credit Suisse Securities (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012). Here, Mr.
Spinazzola had six months from receipt of the first denial letter on May 1, 2018 to bring his medical
negligence claim. He failed to do so and does not allege that any “extraordinary circumstances
stood in his way.” See id. He essentially asks the court to toll the statute of limitations due to his
misunderstanding of § 2401(b)’s requirements. That basis is insufficient as Mr. Spinazzola had
ample opportunity to file suit on his medical negligence claim. See Barnes, 776 F.3d at 1150-51
(refusing to grant equitable tolling where plaintiffs “had ample opportunity in which to timely file,
but failed to do so”).

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Courts frequently consider the scope of administrative claims when evaluating whether the
FTCA’s exhaustion requirement has been satisfied. “The FTCA bars claimants from bringing suit
in federal court until they have exhausted their administrative remedies.” Lopez, 823 F.3d at 976
(quoting McNeil v. United States, 508 U.S. 106, 113 (1993)). The Tenth Circuit has stated that a
“claim” must feature two components: “(1) a written statement describing the injury in sufficient
detail to allow the agency to begin an investigation into the possibility of potentially tortious
conduct, and (2) a request for a sum certain in damages.” Id. “[T]he claim asserted encompasses
any cause of action fairly implicit in the facts.” Id. (internal quotation marks and citation omitted).
Applying these principles, the Tenth Circuit in United States v. Lopez concluded that the facts
alleged in the plaintiff’s administrative claim, alleging medical negligence, “were not sufficient to
encompass and give the government notice of his negligent credentialing and privileging claim.” 3
Id. at 976-77. Even though the negligent credentialing and privileging claim required “proof that
the plaintiff was injured by the negligent acts of the improperly credentialed and privileged
physician . . . . such a claim also requires proof that the hospital/employer breached a legal duty
by credentialing and privileging the physician.” Id. at 977. Because nothing in the plaintiff’s
administrative claim “provided the government with notice that it needed to investigate whether

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The administrative claim filed by the plaintiff in United States v. Lopez stated:
This is a claim for medical malpractice arising from substandard medical care
provided to Leonard Lopez during a surgical procedure on March 5, 2010 at the
VA Medical Center. During the left L5–S1 decompression/discectomy procedure,
Glenn W. Kindt, M.D., and Samuel Waller, M.D., cut and removed part of a nerve.
Dr. Kindt's and Dr. Waller's cutting and removal of this nerve was a breach of the
standard of care and caused Mr. Lopez injuries, damages and losses. As a result of
Dr. Kindt's and Dr. Waller's cutting and removal of the nerve from Mr. Lopez's
body, he developed permanent injuries including CRPS Type II and exacerbation
of his post-traumatic stress disorder.

Lopez, 823 F. 3d at 975.
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the VA Hospital was negligent in credentialing and privileging [the physician],” the court
concluded his “administrative claim did not reasonably encompass his negligent credentialing and
privileging claim.” Id. If the issue here were exhaustion, Lopez would compel the court to find
that plaintiff’s first SF-95 was insufficient to put the VA on notice of his negligent hiring and
supervision claims. As another district court in the Tenth Circuit has explained:
When an executive branch agency is presented with an administrative claim that—
fairly read—centers entirely around the specific medical care rendered by specific
personnel to a specific patient, Lopez forecloses the argument that such a claim
implicitly encompasses ancillary claims having to do with how and why their
employer hired, credentialed, trained, supervised, or staffed its personnel.
Mark v. United States, 224 F. Supp. 3d 1207, 1212 (D.N.M. 2016)). That rationale is important
here. Plaintiff’s first SF-95 contains bare bones allegations regarding a specific medical claim, i.e.
that his “treating physicians failed to inform him of, or treat, a pancreatic tumor after it was first
identified in September 2016.” [Doc. 6-1, p. 1]. As in Mark and Lopez, nothing in the first SF-95
provided the government sufficient notice of the relevant facts of his negligent supervision and
hiring claims. See also Kikumura v. Osagie, 461 F.3d 1269, 1302 (10th Cir. 2006), overruled on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (“the administrative tort claims
he filed with the BOP fail to mention the possibility that his injuries were caused by the inadequate
training and supervision of [prison] staff”). Consequently, as to plaintiff’s negligent hiring and
supervision claims, the second SF-95 is not a duplicative filing.
Defendant argues that the “[p]laintiff fails to cite to any conduct or allegations in either the
second SF-95 or the Complaint that are unrelated to the allegations concerning the CT scan and
alleged medical malpractice.” [Doc. 9, p. 4]. While plaintiff’s claims for negligent hiring and
supervision may be factually related to his medical negligence claim, the defendant has presented
no authority for the proposition that they are so intertwined that the administrative denial of his

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medical negligence claim operates to preclude his subsequent negligent hiring and supervision
claims. 4 See Mark, 224 F. Supp. 3d at 1212 (“Lopez forecloses the argument that [a medical
negligence] claim implicitly encompasses ancillary claims having to do with how and why their
employer hired . . . its personnel.”). The second SF-95 puts the government on notice of his
negligent hiring and supervision claims whereas the first SF-95 did not. So long as defendant
submitted his written notice to the VA of his negligent hiring and supervision claims within two
years of the claim’s accrual (which is not disputed here), he is entitled to bring this action on those
claims within six months of the agency’s denial of those claims or after six months of agency
inaction. See 28 U.S.C. §§ 2401(b), 2675(a).
The exhaustion requirement in § 2675(a) “establishes a date before which a claim cannot
be filed, [and] § 2401(b)’s limitations period establishes the date after which any claim is barred.”
Barnes, 776 F.3d at 1139. If the January 2019 letter constitutes “notice of final denial” under 28
U.S.C. § 2401(b), plaintiff satisfied § 2401(b)’s requirement by filing this lawsuit less than three
months after receiving the letter. However, if the letter does not constitute “notice of final denial,”
plaintiff’s negligent hiring and supervision claims are premature because this suit was filed less

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Defendant, in support of its argument that the second SF-95 is duplicative of the first, emphasizes
in a footnote that negligent hiring and supervision claims are “based on an employee’s harm to a
third party through employment.” [Doc. 9, p. 4 n. 1 (quoting N.H. v. Presbyterian Church (U.S.A.),
998 P.2d 592, 600 (Okla. 1999)]. However, that case makes clear that, in Oklahoma, “[e]mployers
may be held liable for negligence in hiring, supervising or retaining an employee. In such
instances, recovery is sought for the employer’s negligence.” N.H., 998 P.2d at 600 (emphasis
added). While “[t]he claim is based on an employee’s harm to a third party through employment.
. . . [t]he critical element for recovery is the employer’s prior knowledge of the servant’s
propensities to create the specific danger resulting in damage.” Id. (emphasis added). Thus, the
elements of a claim for medical negligence and the elements of claims for either negligent
supervision or hiring appear to be separate and distinct. See id. (“An employer is found liable,
if—at the critical time of the tortious incident—, the employer had reason to believe that the person
would create an undue risk of harm to others. Employers are held liable for their prior knowledge
of the servant’s propensity to commit the very harm for which damages are sought. In Oklahoma,
the theory of recovery is available if vicarious liability is not established.”).
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than six months after the filing of plaintiff’s second SF-95. See 28 U.S.C. § 2675(a). The VA
characterized plaintiff’s second SF-95 as a request for reconsideration and declined to take action
on it, claiming they no longer had jurisdiction to do so. [See Doc. 6-5; accord Doc. 8-4].
Accordingly, the letter is better viewed as a notice of no action, rather than a notice of denial.
When an agency fails to take action, plaintiffs are not left without a remedy. “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 any time thereafter, be deemed a final denial of the claim for purposes of
this section.” 28 U.S.C. § 2675(a). As the Tenth Circuit has explained, “[i]n a nutshell, § 2675(a)
articulates an administrative-exhaustion requirement that dictates when a potential plaintiff’s
opportunity to initiate a claim begins.” Barnes, 776 F.3d at 1142. “To the extent that § 2675(a)
permits a party to ‘deem’ an administrative claim denied, the statute makes clear that this
constitutes a ‘final denial’ only for purposes of determining whether the administrative exhaustion
requirement is satisfied, i.e. whether it is still too early to file a claim.” Id. (emphasis original).
Here, it was too early for plaintiff to file his medical supervision and hiring claims. The agency
action was not “deemed denied” for purposes of § 2675 until June 12, 2019, six months after the
agency received his second SF-95. [See Doc. 2, pp. 2-3 ¶ 4 (the second SF-95 was presented to
the VA on December 12, 2018)]. Because the requirements of § 2675(a) are jurisdictional (Lopez,
823 F.3d at 976), the court lacks jurisdiction to hear plaintiff’s negligent hiring and supervision
claims. 5 Accordingly, the court must dismiss those claims without prejudice. See Brereton v.

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“[T]he FTCA’s exhaustion requirement is jurisdictional, and the district court must consider its
own jurisdiction even when it has not been challenged.” Webb v. Smith, 632 F. App’x 957, 960
(10th Cir. 2015) (unpublished) (internal quotation marks and citation omitted)); accord Duplan v.
Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (“It is well established that this Court must sua
sponte satisfy itself of its power to adjudicate in every case.” (internal quotation marks and citation
omitted)).
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Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006). The court emphasizes that, because
“[t]here is no limit on when a plaintiff may file a lawsuit predicated on a deemed denial,” plaintiff
is free to bring his negligent supervision and hiring claims in a new action now that the § 2675
“deemed denial” period has passed. See Barnes, 776 F.3d at 1140.
IV. Conclusion
WHEREFORE, defendant’s Motion to Dismiss [Doc. 6] is GRANTED in part as to
plaintiff’s first claim for relief. Plaintiff’s second and third claims for relief are DISMISSED for
lack of subject matter jurisdiction.
IT IS SO ORDERED this 15th day of November, 2019.

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