Slomczewski v. United States of America (TV1)

Filing 26

MEMORANDUM AND OPINION as set forth in following order.Signed by Chief District Judge Thomas A Varlan on 1/28/13. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SCOTT THOMAS SLOMCZEWSKI,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No.:

3:12-CV-188
(VARLAN/SHIRLEY)

MEMORANDUM OPINION
This civil matter is before the Court on the United States’ Motion to Dismiss [Doc.
6]. The United States, as defendant, requests the Court to dismiss the action for lack of
subject matter jurisdiction. Plaintiff, appearing pro se, has responded to the motion [Doc.
15]. For the reasons stated herein, defendant’s motion [Doc. 6] will be GRANTED and
plaintiff’s claims against the United States will be DISMISSED.
I.

Facts
This dispute arises from plaintiff’s treatment while a patient at the Cherokee

Health System, Washburn Medical Center (“CHS”) in Washburn, Tennessee, during the
period of 2007 through February 2011 (Doc. 1-1 at 3-7). During this time period,
plaintiff alleges that he received improper treatment from CHS and its employees,
including wrongful charging for services he should not have received and for
prescriptions he did not need, as well as a lack of communication from several of the
doctors with whom plaintiff interacted [Id. at 7].

On January 13, 2012, plaintiff filed a complaint against CHS and several staff
members in the Circuit Court for Grainger County, seeking nine million dollars and other
various forms of relief [Id. at 9]. In April 2012, the United States identified CHS as a
federally funded medical facility as set forth in 42 U.S.C. § 233(g) and the medical staff
named in the complaint as operating within the scope of their federal employment at the
time of the alleged events [Doc. 7 at 2]. The United States removed the matter to this
Court, and the Court substituted the United States for all previously named defendants on
May 2, 2012 [Doc. 5]. The United States then filed the present motion [Doc. 6], seeking
dismissal for lack of subject matter jurisdiction under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”).
II.

Analysis
A.

Standard of Review

A complaint may be dismissed pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), a motion to dismiss based
on lack of subject matter jurisdiction “may either attack the claim of jurisdiction on its
face or it can attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410
F.3d 879, 881 (6th Cir. 2005). “A facial attack is a challenge to the sufficiency of the
pleading itself” and “the court must take the material allegations of the petition as true
and construed in the light most favorable to the nonmoving party.” United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citing Scheuer v. Rhodes, 416 U.S. 232, 235–
37 (1974)). “A factual attack, on the other hand, is . . . a challenge to the factual
existence of subject matter jurisdiction.”

Id. at 598.
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With a factual attack, “no

presumptive truthfulness applies to the factual allegations, and the court is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case.” Id.
(citation omitted). In reviewing factual motions, “a trial court has wide discretion to
allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th
Cir. 1990). The plaintiff bears the burden of proving that jurisdiction exists. Gorno
Bros., 410 F.3d at 881; Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269
(6th Cir. 1990). If the plaintiff fails to meet his burden of proving jurisdiction, a motion
to dismiss must be granted. Davis v. United States, 499 F.3d 590, 594 (6th Cir. 2007)
(quoting Moir, 895 F.2d at 269).
As plaintiff in this case is appearing pro se, the Court notes that, generally, the
allegations of a complaint drafted pro se are held to less stringent standards than those
drafted by attorneys. Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (citing Estelle v.
Gamble , 429 U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded
to pro se litigants has limits,” Pilgrim v. Littlefield , 92 F.3d 413, 416 (6th Cir. 1996), and
courts have not been “willing to abrogate basic pleading essentials in pro se suits,” Wells
v. Brown , 891 F.2d 591, 594 (6th Cir. 1989) (citing cases). A plaintiff, even one who is
proceeding pro se, must comply with the basic requirements set forth in Rule 8(a), which,
among other requirements, require that a pleading contain “a short and plain statement of
the grounds upon which the court's jurisdiction depends . . . .” Bryant v. U.S. Atty. Gen.,
No. 1:06-CV-64, 2006 WL 2612730, at *1 (E.D. Tenn. Sept. 8, 2006); Fed. R. Civ. P.
8(a). Additionally, a plaintiff is prohibited from “simply referenc[ing] a federal statute or
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constitutional provision in order to invoke the limited jurisdiction of a federal court.”
Bryant, 2006 WL 2612730, at *3.
B.

The FTCA

In its motion to dismiss [Doc. 6], the United States claims that plaintiff is
attempting to assert a tort claim that amounts to medical malpractice and must comply
with the requirements of the FTCA in order for this Court to have jurisdiction, thereby
attacking the factual basis for which this Court has jurisdiction. The United States
contends that plaintiff has not met the requirements of the FTCA because he has not
exhausted the administrative claim requirement and therefore dismissal is appropriate.1
It is well-established law that the United States, as sovereign, may not be sued
without its specific consent. Ellison v. United States, 531 F.3d 359, 361 (6th Cir. 2008)
(citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). While the United States
has consented to be sued through the FTCA, its consent, as well as a court’s jurisdiction
to hear the case, is limited to the conditions imposed by Congress under which suits are
to be permitted. See Sherwood, 312 U.S. at 586-587; Ashbrook v. Block, 917 F.2d 918,
922 (6th Cir. 1990) (“Congress may define the conditions under which suit will be
permitted.”) (quotations omitted).
Section 2675(a) of the FTCA sets forth the administrative claim requirement for a
claim that falls within the provisions of the statute, providing in pertinent part:

1

Although plaintiff submitted a response to the United States’s motion [Doc. 15], the
response largely focuses on factual allegations rather than substantively responding to the United
States’s claim that plaintiff has not met the requirements of the FTCA for the Court to exercise
jurisdiction.
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“An action shall not be instituted upon a claim 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 of omission of any employee of the
Government while acting within the scope of his office or
employment, 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 and sent by
certified or registered mail.”
28 U.S.C. § 2675(a).

Courts have held that the requirement of exhaustion of

administrative remedies is a jurisdictional prerequisite to the filing of an action under the
FTCA. McNeil v. United States, 508 U.S. 106, 113 (1993); Joelson v. United States, 86
F.3d 1413, 1422 (6th Cir. 1996); Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir.
1991).
In support of its motion to dismiss, the United States submitted the affidavit of
Meredith Torres, an attorney with the Office of the General Counsel of the Department of
Health and Human Services (“Health and Human Services”) [Doc. 8]. In the affidavit,
which has not been contested by plaintiff, Ms. Torres testified that CHS is covered under
the FTCA and that CHS’s employees are Public Health Service Employees for purposes
of the statute [Id. ¶ 5]. Ms. Torres further testified that any claim filed against CHS
would be maintained by Health and Human Services, and that a search of the claims
system did not reveal any administrative tort claim filed by plaintiff against CHS [Id. ¶¶
2, 3].
Plaintiff does not contend that he has filed an administrative tort claim with
Health and Human Services or that the requirements of the FTCA have otherwise been
satisfied.

Nor does plaintiff contend that the administrative filing requirement is
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inappropriate under the circumstances of this case. Plaintiff has not complied with the
administrative filing requirement of the FTCA, and as a result plaintiff has failed to meet
his burden of demonstrating that this Court has jurisdiction over his claims against the
United States. Accordingly, dismissal of plaintiff’s claims against the United States is
appropriate in this case.
III.

Conclusion
For the reasons discussed, the United States’ motion to dismiss [Doc. 7] will be

GRANTED. Plaintiff’s claims against the United States will be DISMISSED, and this
matter will be CLOSED.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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