Cook v. U.S. Government et al
Filing
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MEMORANDUM OPINION in support of the following Judgment.Signed by District Judge Thomas W Phillips on 4/10/13. (c/m)(ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MARILYN POWELL COOK,
Plaintiff,
v.
U.S. GOVERNMENT,
IRS CRIMINAL INVESTIGATION, and
FAYE ALSTON COOK,
Defendants.
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No. 3:12-CV-279
(Phillips)
MEMORANDUM OPINION
This pro se civil action arises from a criminal prosecution for fraud in which
plaintiff plead guilty to eighteen counts of preparing and filing false and fraudulent federal
income tax returns. See United States v. Marilyn Powell Cook, United States District Court
for the Eastern District of Tennessee, Case No. 3:05-CR-7. In the instant case, plaintiff
alleges that she was “falsely accused of filing false tax returns.” Plaintiff asserts that the
actions of defendant Faye Alston Cook, who plaintiff asserts worked for the IRS, along with
Cook’s “collages” [sic], caused the alleged harm for which she now seeks damages.
Defendants U.S. Government and IRS Criminal Investigation move to dismiss this action
for lack of subject matter jurisdiction and failure to state a claim. In support of the motion,
defendants state that plaintiff has failed to exhaust her administrative remedies with respect
to any claims she may allege that sound in tort, and as a result, pursuant to the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80, this court lacks jurisdiction over any such
claims. With respect to the remaining claims in the complaint, defendants assert that
plaintiff fails to state a claim as all such claims arise from the purported actions of a nonIRS employee, defendant Faye Alston Cook, and the “collages” [sic] of Cook.
Subject matter jurisdiction is an essential element of a plaintiff’s case. When
a defendant challenges subject matter jurisdiction, the burden of proving jurisdiction is on
the plaintiff. Davis v. United States, 499 F.3d 590, 594 (6th Cir. 2007). If the plaintiff fails
to meet her burden of proving jurisdiction, a motion to dismiss must be granted. Id. 29
U.S.C. § 2675(a) provides:
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 or 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.
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.
Therefore, no action may be instituted by a plaintiff until the administrative claim required
has been exhausted, either by having the claim finally denied by the agency or by six
months having expired since the time the claim was filed. 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). In her response to the defendants’ motion to dismiss,
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plaintiff states, “I agree with the Government. I will file administrative remedy procedures
against the U.S. Government, IRS Criminal Investigation, and Stephayne Cook
immediately. Furthermore, I will file a separate Complaint against Faye Alston Cook for
Conspiracy against rights immediately.” It appears from her response that plaintiff agrees
with the defendants’ assertion that the court lacks subject matter jurisufdiction over her
complaint. Accordingly, the court finds the defendants’ motion to dismiss the complaint
[Doc. 11] well taken and it is GRANTED. This action is DISMISSED in its entirety.
ENTER:
s/ Thomas W. Phillips
United States District Judge
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