Collins v. Administration of Veterans Affairs

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATION for 16 . Defendants motion to dismiss (ECF No. 8) is GRANTED and Plaintiffs action is DISMISSED without prejudice Signed by Honorable Timothy M Cain on 5/1/2018. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Johnny Collins,
Plaintiff,
vs.
Administration of Veterans Affairs,
Defendants.

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Civil Action No. 6:17-2292-TMC

ORDER

Johnny Collins (“Plaintiff”), proceeding pro se, filed this action pursuant to the Federal
Tort Claims Act (“FTCA”). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the
court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the
court grant the Administration of Veterans Affairs’ (“Defendant”) motion to dismiss. (ECF No.
16). The parties were advised of their right to file objections to the Report. (ECF No. 16-1). On
March 14, 2018, Plaintiff filed an objection. (ECF No. 20).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
71 (1976). The court is charged with making a de novo determination of the portions of the
Report to which specific objection is made, and the court may accept, reject, or modify, in whole
or in part, the recommendation of the magistrate judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review when a party
makes only “general and conclusory objections that do not direct the court to a specific error in
the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge’s
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conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005).
Plaintiff commenced this action on July 3, 2017, alleging that on April 22, 2017, a tree
fell and damaged his truck. (ECF No. 1-1). Liberally construed, he sought an award of damages
from Defendant for property damage, pursuant to the FTCA, in the amount of $7,580. Id. at 2.
Under the FTCA, “[a]n action shall not be instituted upon a claim against the United States for
money damages . . . unless the claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied by the agency in writing . . . .” 28
U.S.C. § 2675(a). A cause of action under the FTCA must be presented to the appropriate
federal agency within two years after the claim accrues, and the tort suit must be begun within
six months after the date of the final denial of the claim by the agency to which it was presented.
See 28 U.S.C. § 2401(b). In order to “properly present” an administrative claim, the claimant
must present the agency with (i) a completed Standard Form 95 (or other written notification of
the incident) and (ii) “a claim for money damages in a sum certain . . . .” Kokotis v. U.S. Postal
Service, 223 F.3d 275, 278 (4th Cir. 2000) (quoting 28 C.F.R. § 14.2(a)) (emphasis omitted).
The burden of establishing subject matter jurisdiction over an FTCA claim lies with the plaintiff.
See Welch v. United States, 409 F.3d 646, 650–51 (4th Cir. 2005).
In her Report, the magistrate judge recommends that the court grant Defendant’s motion
to dismiss. (ECF No. 16). The magistrate judge recommends dismissing the action to the extent
that Plaintiff was attempting to bring a FTCA claim against any defendant other than the United
States. (ECF No. 16 at 7) (citing Starling v. United States, 664 F. Supp. 2d 558, 570 (D.S.C.
2009) (“The cause of action created by the FTCA must be exclusively brought against the United
States government.”)); see also Bates v. United States Gov't, 3 F. Supp. 3d 1311, 1318 (S.D. Ala.

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2014) (“The FTCA . . . does not authorize suits against federal agencies . . . .”). Moreover, the
magistrate judge finds that Plaintiff failed to demonstrate that he submitted a Standard Form 95
to an appropriate agency or that a federal agency has issued a final determination on his claim.
Id. at 7.

Accordingly, the magistrate judge concludes that Plaintiff failed to exhaust his

administrative remedies under the FTCA and failed to carry his burden of proving that the court
has subject matter jurisdiction to review his claims. (ECF No. 16 at 9).
In his objection, Plaintiff fails to object to any specific or dispositive portion of the
magistrate judge’s Report. (ECF No. 20). Rather, he merely restates the allegation from his
complaint and provides additional assertions of fact. (ECF No. 20 at 1). He argues that Tinsley
Real Estate, the alleged management company for the property and alleged agent of the
Administration of Veterans Affairs, was aware that the tree was dangerous and took no action.
Plaintiff also asserts that he contacted the home owner’s insurance company and sent pictures,
but was informed that it was not responsible for the damages. Additionally, he attaches what
appears to be a statement from Foster Tree Service regarding the fallen tree (ECF No. 20-1) and
copies of emails containing photos with the subject lines “Damages,” and “Damage car” (ECF
No. 20-2). However, Plaintiff fails to allege any specific error in the magistrate judge’s Report
and does not allege or provide evidence that he presented a Standard Form 95 to the appropriate
federal agency prior to commencing this action. Because the court agrees with the magistrate
judge’s analysis, the court adopts the Report and Plaintiff’s general objection is overruled. See
Orpiano, 687 F.2d at 47.
After a thorough review of the Report and the record in this case, the court adopts the
magistrate judge's Report (ECF No. 16) and incorporates it herein. Accordingly, Defendant’s

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motion to dismiss (ECF No. 8) is GRANTED and Plaintiff’s action is DISMISSED without
prejudice.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
May 1, 2018
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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