Walker v. FMC Carswell et al
Filing
20
MEMORANDUM OPINION AND ORDER: The court ORDERS that the government's 14 motion and 18 supplemental motion to dismiss be, and are hereby, granted, and that plaintiff's claim be, and is hereby, dismissed for want of jurisdiction. (Ordered by Judge John McBryde on 12/18/2017) (tln)
ANGELA WALKER,
§
Plaintiff,
§
§
vs.
§
§
UNITED STATES OF AMERICA,
§
NO. 4:17-CV-488-A
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of United States of
America to dismiss and the supplemental motion to dismiss.
Plaintiff, Angela Walker, has failed to respond to the motions,
which are ripe for ruling. The court, having considered the
motions, the record, and applicable authorities, finds that the
motions should be granted.
I.
Plaintiff's Claim
On June 16, 2017, the clerk received and filed papers
submitted by plaintiff instituting this action. By order signed
July 24, 2017, the court recognized it as one arising under the
Federal Tort Claims Act and ordered that United States be
substituted as the defendant.
Plaintiff alleges that on February 6, 2015, she was
"overdosed with a deadly dose of Dilantin" by a physician at FMC
Carswell where she was then incarcerated. Doc. 1 1 at 1. She
alleges that the overdose has caused her to become wheelchairbound and to suffer excruciating pain and mental anguish. Id. She
seeks to recover $1,000,000.00. Id.
II.
Ground of the Motions
United States maintains that plaintiff has not exhausted her
administrative remedies. Thus, sovereign immunity has not been
waived and the court lacks jurisdiction of this action.
III.
Applicable Legal Standards
When considering a motion to dismiss for lack of subject
matter jurisdiction, the court construes the allegations of the
complaint favorably to the pleader.
Id.
However, the court is
not limited to a consideration of the allegations of the
complaint in deciding whether subject matter jurisdiction exists.
Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981).
The
court may consider conflicting evidence and decide for itself the
factual issues that determine jurisdiction.
Id.
Because of the
limited nature of federal court jurisdiction, there is a
presumption against its existence.
See Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374 (1978); McNutt v. General Motors
'The "Doc.
" reference is to the number of the item on the docket in this action.
2
Acceptance Corp., 298 U.S. 178, 189 (1936).
A party who seeks to
invoke federal court jurisdiction has the burden to demonstrate
that subject matter jurisdiction exists.
McNutt, 298 U.S. at
178; Wilson v. Republic Iron & Steel Co., 257 U.S.
92, 97
(1921).
IV.
Analysis
Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) &
2671-80
("FTCA"),
the United States has granted a limited waiver
of sovereign immunity for torts committed by her employees acting
within the scope of their employment to the same extent that a
private person would be liable under state law. 28 U.S.C.
§1346(b) (1). Under the FTCA, claims may only be brought in
federal courts and only after the exhaustion of administrative
remedies. Lopez v. Sentrillon Corp.,
749 F.3d 347, 350-51 (5th
Cir. 2014).
Administrative remedies are exhausted by filing a claim with
the appropriate agency within two years of the alleged injury. 28
U.S.C. § 2675(a). Presentment of an administrative claim is an
absolute jurisdictional prerequisite to filing a lawsuit and must
be pleaded and proven by the claimant. Bryan v. Stevens, 169 F.
Supp. 2d 676, 684
(S.D. Tex. 2001). Presentment requires the
giving of notice of a claim and notice of the monetary value of
the claim. Stancomb v. United States, 121 F. Supp. 2d 1019, 1020-
3
21 (E.D. Tex. 2000). See Bradley v. United States, 951 F.2d 268,
271
(10th Cir. 1991) (notice must be of a sum certain; stating
that the claim is "in excess of" an amount is not sufficient) . An
agency is not deemed to have received notice unless the plaintiff
can establish--usually by certified mail receipt--that the agency
actually received notice of the claim and notice of the value of
the claim. Bryan, 169 F. Supp. 2d at 684; Stancomb, 121 F. Supp.
2d at 1020-21.
In this case, as United States notes, plaintiff does not
specifically allege in her complaint that she exhausted her
administrative remedies, although her cover letter stated that
she submitted a tort claim to the Bureau of Prisons on June 1,
2015, and had not received a response. Doc. 1 at 9. The court
also notes that a copy of a Form 95 tort claim dated June 1,
2015, along with a cover letter to Bureau of Prisons was attached
to correspondence received by the court from plaintiff on July
21, 2017. Doc. 8 at 12-14. However, plaintiff has not attempted
to prove receipt of her claims by the Bureau of Prisons. United
States, on the other hand, has submitted declarations stating
that the government has no record of any administrative tort
claims filed by plaintiff. Because plaintiff has not established
that she exhausted her administrative remedies, the court lacks
4
jurisdiction over this action and plaintiff's claim must be
dismissed.
v.
Order
The court ORDERS that the government's motion and
supplemental motion to dismiss be, and are hereby, granted, and
that plaintiff's claim be, and is hereby, dismissed for want of
jurisdiction.
SIGNED December 18, 2017.
District Judge
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