WILSON v. UNITED STATES OF AMERICA

Filing 25

MEMORANDUM OPINION AND ORDER granting 16 Motion to Dismiss pursuant to FRCP 12(b)(1). See memorandum opinion for details. Signed by Magistrate Judge Cynthia Reed Eddy on 10/24/2017. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROGER WILSON,
Plaintiff,
v.
UNITED STATES GOVERNMENT and
OFFICE OF ATTORNEY GENERAL,
Defendants.

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Judge Cynthia Reed Eddy
2:17-cv-00301

MEMORANDUM OPINION AND ORDER1
I. INTRODUCTION
Presently before the Court is the Motion to Dismiss filed by the United States
Government and Office of Attorney General (collectively, “Defendants”) pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), with brief in support. (ECF Nos. 16 and 17).
Plaintiff filed a response in opposition (ECF No. 22), to which Defendants filed a reply. (ECF
No. 24). The matter is fully briefed and ripe for disposition.
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 10, 2007, Plaintiff pled guilty in the United States District Court for the
Western District of Pennsylvania to one count of conspiracy to possess and possess with intent to
distribute cocaine in violation of 21 U.S.C. § 846, and one count of possession with intent to
distribute cocaine in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). (2:06-cr-00316: ECF No.
290; 2:07-cr-00101: ECF No. 42). On January 8, 2008, Plaintiff was sentenced to a term of
sixty-five (65) months’ imprisonment to be followed by a term of supervised release of six (6)

All parties have consented to jurisdiction by the undersigned Magistrate Judge. See 28
U.S.C. § 636 et seq.; Consent to Trial / Jurisdiction by United States Magistrate Judge (ECF Nos.
2 and 20).
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years.

Plaintiff was released to supervision on December 1, 2011. (2:06-cr-00316: ECF No.

600 at 2).
On October 10, 2012, Plaintiff appeared with counsel before the Court for a supervised
release and revocation hearing. Thereafter, Plaintiff was committed to the United States BOP in
order to complete a mental health evaluation. On January 4, 2013, following a competency
hearing, Plaintiff was committed to the custody of the Attorney General for restorative
hospitalization. On December 20, 2013, the Court found that further custody of Plaintiff by the
Attorney General for purposes of evaluation and treatment was not warranted and Plaintiff was
released from custody.
On January 21, 2016, the U.S. Probation Officer requested that Plaintiff be discharged
from supervision, prior to its original expiration date. On February 2, 2016, without objection
from the parties, the court terminated Plaintiff’s supervision.
Plaintiff filed his initial Complaint in this case on March 8, 2017. (ECF No. 1). On May
30, 2017, Plaintiff filed an Amended Complaint, which remains his operative pleading. (ECF
No. 14). Plaintiff claims that he was illegally detained between October 2012 and December
2013, based on false reports of supervision violations by his U.S. probation officer. As a result of
his detention, Plaintiff claims that he lost his dating website business and seeks $500 million in
damages. Plaintiff’s claims sound in negligence.2 The Federal Tort Claims Act authorizes
“damages to be recovered against the United States for harm caused by the negligent or wrongful
conduct of Government employees, to the extent that a private person would be liable under the

Even though Plaintiff does not mention the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346(b), 2671, et seq., negligence claims against the United States government are
brought pursuant to the FTCA.
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law of the place where the conduct occurred.” Boyle v. United Technologies Corp., 487 U.S.
500, 511 (1988) (citing 28 U.S.C. § 1346(b)).
Defendants filed the instant motion under Federal Rules of Civil Procedure 12(b)(1), as
well as under 12(b)(6). First, Defendants argue that Plaintiff’s claims should be dismissed in
their entirety since he failed to exhaust his Administrative remedies as required. This argument
is based on Rule 12(b)(1). Next, Defendants argue that the Office of the Attorney General
should be dismissed because under the FTCA the United States of America is the only proper
party defendant, not the federal agency or an individual federal employee.3
III.

STANDARD OF REVIEW
A.

Challenge to Subject-Matter Jurisdiction

Dismissal of a complaint is warranted under Federal Rule of Civil Procedure 12(b)(1)
when the district court lacks subject-matter jurisdiction over the claims pled therein. A 12(b)(1)
motion may challenge jurisdiction based on the face of the complaint or its existence in fact. In
re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017) (citing
Davis v. Wells, 824 F.3d 333, 346 (3d Cir. 2016)). When the challenge is facial, the court must
accept as true all well-pleaded allegations in the complaint and draw reasonable inferences in
favor of the plaintiff. Mortensen v. First Fed. Savings and Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1977). When the challenge is factual, however, the court is not bound by the allegations in
the pleadings. Id.

Therefore, “no presumptive truthfulness attaches to plaintiff’s allegations”

for factual challenges. Id. Regardless of whether the challenge is facial or factual, the plaintiff
bears the burden of persuasion.

In his reply, Plaintiff clarified that he was bringing this case only against the United
States Government. Therefore, the Office of the Attorney General will be dismissed without
objection.
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Here, the Court deems Defendants as making a factual challenge to jurisdiction. Thus,
the Court will consider the Declaration attached to Defendants’ brief with respect to their Rule
12(b)(1) motion.
B. Failure to State a Claim
Dismissal of a complaint or portion of a complaint is justified under Federal Rule of Civil
Procedure 12(b)(6) when a claimant fails to sufficiently state a claim upon which relief can be
granted.

Avoiding dismissal under Rule 12(b)(6) requires a pleading party’s complaint to

provide “enough factual matter” to allow the case to move beyond the pleading stage of
litigation; the pleader must “‘nudge his or her claims across the line from conceivable to
plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 – 35 (3d Cir. 2008) (quoting Bell
Atlantic Co. v. Twombly, 550 U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a
two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 – 11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim for relief.” Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include “detailed
factual allegations,” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court
must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d
651, 653 (3d Cir. 2003)). Moreover, a pleading party need only “put forth allegations that ‘raise
a reasonable expectation that discovery will reveal evidence of the necessary element[s].’”
Fowler, 578 F.3d at 213 (quoting Graff v. Subbiah Cardiology Assoc., Ltd., 2008 WL 2312671
(W.D. Pa. June 4, 2008)). A well-pleaded complaint, even when “it strikes a savvy judge that

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actual proof of…facts is improbable,” will not be dismissed as long as the pleader demonstrates
that his or her claim is plausible. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555 –
56).
Nevertheless, the facts provided do need to raise the expectation of relief above a purely
speculative level, and must include more than “labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Phillips, 515 F.3d at 231 – 32 (quoting Twombly, 550 U.S.
at 554 – 56). Rule 8(a)(2) “requires a ‘showing’ rather than a blanket assertion of an entitlement
to relief.” Id. at 232. “[T]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
The Court will first consider the Rule 12(b)(1) motion. As stated supra, Defendants
argue that this Court lacks subject matter jurisdiction due to Plaintiff’s failure to exhaust his
Administrative remedies. As noted, Defendants have submitted a Declaration in support of this
argument.4
IV.

DISCUSSION
When the United States government is sued in tort, the FTCA is the sole avenue available

for asserting a claim. Vanderlok v. United States, 868 F.3d 189, 201 (3d Cir. 2017). It operates
as a limited waiver of sovereign immunity, and must be strictly construed. White-Squire v.
United States Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citing Roma v. United States, 344
F.3d 352, 362 (3d Cir. 2003); Livera v. First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d
Cir. 1989)). The FTCA specifically requires that before a civil action may be initiated, the

Courts can consider documents outside the pleadings when considering a Rule 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction that is treated by the Court as a factual
challenge to jurisdiction. See PA Protection and Advocacy, Inc., v. Houston, 136 F. Supp. 2d
353, 359 (E.D. Pa. 2001).
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claimant must first present an administrative claim to the appropriate administrative agency and
obtain a final denial of that tort claim. 28 U.S.C. § 2675(a); White-Squire, 592 F.3d at 457
(citing 28 U.S.C. § 2675(a)); Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir. 2009). This
requirement is “jurisdictional and cannot be waived.” White-Squire, 592 F.3d at 457 (quoting
Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971)). In other words, no FTCA case
may be initiated in court unless the claimant first presented a written claim to the appropriate
agency within two years after such claim accrued, and then suit must be commenced within six
months of the denial of the claim. See 28 U.S.C. §§ 2401(b) & 2675(a).
Therefore, in this case, Plaintiff must have submitted an FTCA notice to the offending
agency prior to commencing this action. In support of their position, Defendants have provided
the Declaration of Laura E. Cress, Paralegal Specialist of the Office of General Counsel with the
Administrative Office of the United States Courts. (ECF No. 17-1). The Administrative Office
of the United States Courts (“Administrative Office”) acts as the head of a Federal agency for the
purpose of considering all claims under the FTCA for money damages against the United States
for injury or loss of proper or death allegedly caused by the negligent or wrongful conduct of an
officer or employee of the courts of the United States. In her declaration, Ms. Cress states that
she conducted a search of the records of the Administrative Office and found no claim or
submission made by Plaintiff.

Plaintiff has failed to rebut this evidence.

Therefore, it is undisputed that Plaintiff did not submit a claim concerning the allegations
in this lawsuit to the Administrative Office prior to commencing suit. Because Plaintiff did not

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exhaust his available administrative tort remedies, his claims must be dismissed for lack of
jurisdiction.5
Further, Plaintiff’s claims will be dismissed with prejudice as any attempt at amendment
would be futile. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 217 (3d Cir. 2013) (citing
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008)) (leave to amend not necessary
when amendment would be inequitable or futile). If Plaintiff’s claim accrued in December 2013,
as he indicates, he would be beyond the statute of limitations period to file his tort claim with the
Administrative Office as an administrative claim should have been filed by December 2015.6
Plaintiff cannot now attempt to initiate administrative proceedings to remedy this error.
V. CONCLUSION
Based upon the foregoing, Defendants’ Motion to Dismiss will be granted. The Court
finds that Plaintiff has failed to plead facts sufficient to establish the subject-matter jurisdiction
of this Court. As discussed, any amendment in an attempt to remedy this deficiency would be
futile.
An appropriate Order follows.

In light of the Court’s determination that it lacks subject-matter jurisdiction, it need not
address Defendants’ remaining arguments under Rule 12(b)(6).
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“Normally, a tort claim accrues at the time of injury.” Miller v. Phila. Geriatric Ctr., 463
F.3d 266, 271 (3d Cir. 2006).
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ORDER
AND NOW, this 24th day of October, 2017, it is hereby ORDERED, ADJUDGED
AND DECREED that Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(1) is GRANTED and Plaintiff’s complaint is dismissed with prejudice, as
amendment would be futile.
The Clerk of Court is directed to mark this case CLOSED.

/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc:

Roger Wilson
516 Sinclair Street
Apt. 501
McKeesport, PA 15132
(via U.S. First Class Mail)
Jennifer R. Andrade
United States Attorney’s Office
(via ECF electronic notification)

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