Wise v. Lappin et al
Filing
31
MEMORANDUM OPINION regarding plaintiff's claims. Signed by Judge Thad Heartfield on 6/28/2011. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
TIMOTHY SCOTT WISE
§
VS.
§
UNITED STATES OF AMERICA
§
CIVIL ACTION NO. 1:09cv183
MEMORANDUM OPINION
Plaintiff Timothy Scott Wise, an inmate confined within the
Bureau of Prisons, proceeding pro se, brought this lawsuit pursuant
to Bivens v. Six Unknown Agents of the Bureau of Narcotics and
Dangerous Drugs, 403 U.S. 388 (1971), and the Federal Tort Claims
Act, 28 U.S.C. § 2671, et seq. (the "FTCA").
The court previously
entered an order severing the claims asserted pursuant to Bivens
and assigning those claims a new civil action number. As a result,
only plaintiff’s FTCA claim remains before the court in this
matter.
Analysis
The FTCA provides a limited waiver of sovereign immunity. The
statute allows the United States to be held liable to the same
extent as a private employer for certain common law torts of
government employees acting within the scope of their employment.
28 U.S.C. § 1346(b).
However, as a jurisdictional prerequisite,
the FTCA bars a claimant from bringing suit in federal court unless
he filed an administrative claim with the appropriate federal
agency and either obtained a written denial or waited six months.
See 28 U.S.C. § 2675(a). Based on documents submitted to the court
by plaintiff, it is clear that at the time this lawsuit was filed,
plaintiff had not exhausted his administrative remedies either by
having obtained a written denial to his administrative claim or
waiting six months from the time his administrative claim was
filed.
Plaintiff has submitted a document demonstrating that his
administrative claim was not denied until after this lawsuit was
filed.
In McNeil v. United States, 508 U.S. 106, 112 (1993), the
Supreme
Court
administrative
held
that
remedies
failure
prior
to
to
filing
completely
an
FTCA
exhaust
claim
is
a
jurisdictional defect that cannot be cured by administrative
exhaustion after a lawsuit is filed.
After the Supreme Court
issued its opinion in McNeil, the United States Court of Appeals
for the Fifth Circuit reaffirmed that exhaustion of administrative
remedies is jurisdictional in cases filed under the FTCA, and that
the requirement cannot be waived.
46, 54 (5th Cir. 1995).
Price v. United States, 69 F.3d
In short, a prematurely filed FTCA claim
“cannot become timely by the passage of time after the complaint is
filed,” id. (citing McNeil, 508 U.S. at 106), and a court has no
authority to equitably expand its jurisdiction beyond the limits
established by Congress.
165 (5th Cir. 2001).
Ramming v. United States, 281 F.3d 158,
As plaintiff’s administrative claim was not
denied until after this lawsuit was filed, and as the proper
exhaustion
of
administrative
remedies
is
a
jurisdictional
prerequisite to pursuing an FTCA claim in federal court, the court
lacks subject-matter jurisdiction over his FTCA claim.
lawsuit will therefore be dismissed.
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This
Conclusion
For the reasons set forth above, this matter will be dismissed
for lack of subject-matter jurisdiction.
An appropriate final
judgment shall be entered.
SIGNED this the 28 day of June, 2011.
____________________________
Thad Heartfield
United States District Judge
3
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