Bell v. United States of America

Filing 17

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 2/12/14 GRANTING 13 Deft's Motion to Dismiss. FURTHER ORDERED that this case is DISMISSED. (cc: all counsel, mailed to plaintiff) (djd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH L. BELL, JR.,
Plaintiff,
v.

Case No. 13-CV-1271

UNITED STATES OF AMERICA,
Defendant.
DECISION AND ORDER ON DEFEDANT’S MOTION TO DISMISS
On November 12, 2013, the plaintiff, Joseph L. Bell, Jr. (“Bell”), filed a pro se complaint
against Dr. Lynn Hermanns (“Hermanns”), an employee of the Clement J. Zablocki V.A. Medical
Center (“Medical Center”). The Court amended the caption to substitute the United States of America (the “United States”) for Lynn Hermanns as the proper defendant. (Docket # 6.) Presently before
the Court is the United States’ motion to dismiss Bell’s complaint for failure to exhaust his administrative remedies under the Federal Tort Claims Act (“FTCA”). (Docket # 13.) The United States argues the complaint should either be dismissed for lack of subject matter jurisdiction, pursuant to Fed.
R. Civ. P. 12(b)(1), or for failure to state a claim upon which relief can be granted, pursuant to Fed.
R. Civ. P. 12(b)(6). For the reasons articulated below, the defendant’s motion is granted and Bell’s
complaint is dismissed.

BACKGROUND
The allegations in Bell’s complaint arise from an incident on October 24, 2013. Bell went to
the Emergency Department of the Medical Center that morning for an appointment with Hermanns
concerning back pain. Bell alleges that Hermanns refused to provide him Oxycodone, which had
been prescribed to him in the past. In the afternoon, Bell went back to the Medical Center and was
again denied Oxycodone, this time by Dr. David Tonneum who had been given instructions by
Hermanns not to prescribe Oxycodone to Bell. As a result of not being prescribed Oxycodone, Bell is
seeking money damages for his pain and suffering, mental and emotional anguish, and for the improper denial of his pain medication. This Court granted Bell leave to proceed in forma pauperis after
screening Bell’s complaint.
DISCUSSION
The United States is sovereign and immune from being sued without its consent. See Macklin
v. United States, 300 F.3d 814, 820 (7th Cir. 2002). A waiver of the Federal Government’s sovereign
immunity must be unequivocally expressed in statutory text and is strictly construed, in terms of its
scope, in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996). Therefore, the terms of the
United States’ consent to be sued in any court define that court’s jurisdiction to entertain the suit.
United States v. Sherwood, 312 U.S. 584, 586 (1941).
Congress has waived the Government’s sovereign immunity in enacting the FTCA by providing an exclusive remedy for certain torts of federal employees acting within the scope of their employment. 28 U.S.C. §§ 2671 et seq. See also United States v. Orleans, 425 U.S. 807, 813 (1976). Specifically, under the FTCA, the United States is responsible for the tortious conduct of its employees
“in the same manner and to the same extent as a private individual under like circumstances.” See 28

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U.S.C. § 2674. However, the FTCA requires the exhaustion of administrative remedies prior to suing the federal government in tort. 28 U.S.C. § 2675(a); see also Frey v. Envtl. Prot. Agency, 270 F.3d
1129, 1135 (7th Cir. 2001); Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997). Specifically, the
exhaustion requirement reads as follows:
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 . . . 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.
28 U.S.C. § 2675(a). The exhaustion requirement has been strictly applied, meaning that it is not
enough for a plaintiff to file an administrative claim soon after beginning his lawsuit. McNeil v. United
States, 508 U.S. 106, 111-12 (1993).
As the government states, whether the exhaustion requirement is jurisdictional in nature is
not entirely clear. Although the Seventh Circuit has held that a failure to exhaust administrative
remedies deprives the district court of subject matter jurisdiction over the claim, see Garcia v. Meza,
235 F.3d 287, 290 (7th Cir. 2000), its more recent discussions seem to indicate that the failure to exhaust is probably not a jurisdictional matter, but rather a precondition to the plaintiff’s statutory right
to relief, see Frey, 270 F.3d at 1135. The Frey court noted in dicta that it “might be appropriate to revisit the jurisdictional language in decisions such as Garcia,” because it was “not so sure” that the
holding that failure to exhaust results in a deprivation of subject matter jurisdiction “is technically
correct.” Id. Since Frey, courts have analyzed a failure to exhaust as a failure to comply with the
elements of a federal statute, thereby addressing exhaustion under Fed. R. Civ. P. 12(b)(6) (failure to
state a claim), not 12(b)(1) (subject matter jurisdiction). See Kolodiy v. United States, No. 11-CV-239,

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2011 WL 3489934 (E.D. Wis. Aug. 9, 2011) (addressing the government’s motion to dismiss for
failure to exhaust administrative remedies under Fed. R. Civ. P. 12(b)(6)); Feistel v. United States
Postal Service, No. 08–CV–75, 2008 WL 2048278 (E.D.Wis. May 12, 2008) (taking judicial notice of
exhaustion defects and dismissing plaintiffs’ claim under Rule 12(b)(6)); Repa v. Roadway Express,
Inc., No. 03–CV–1071, 2005 WL 2275939, *1 n.1 (E.D. Wis. Sept. 19, 2005) (quoting Frey, 270 F.3d
at 1132) (“[W]hen an individual fails to comply with the elements of a federal statute, the individual
‘will not prevail, but the court’s power to adjudicate the case is clear, and dismissal should be predicated on Federal Rule of Civil Procedure 12(b)(6), not on 12(b)(1).’”).
Thus, I will address the defendant’s motion to dismiss Bell’s complaint for failure to exhaust
administrative remedies under Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to the probability standard. Id. A plaintiff’s complaint must contain enough “[f]actual allegations. . . to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Bell’s complaint, and the supplements filed thereto, are silent on exhaustion. (Docket # 1, 10,
11.) Generally, if a court must look outside the pleadings to rule on a 12(b)(6) motion, it is necessary
to convert the motion to dismiss into a summary judgment motion under Fed. R. Civ. P. 12(d).
However, I may take judicial notice of the fact that a plaintiff has failed to exhaust his administrative
remedies. See Feistel, 2008 WL 2048278, at *1 (taking judicial notice of the plaintiffs’ failure to timely

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exhaust); Palay v. United States, 349 F.3d 418, 425 n. 5 (7th Cir. 2003) (stating that “in resolving a
motion to dismiss, the district court is entitled to take judicial notice of matters in the public record”).
The United States, by way of the declaration of Michael T. Newman, Assistant Regional
Counsel at the United States Department of Veterans Affairs, asserts that there is no record of Bell
having filed an administrative tort claim against the Department of Veterans Affairs. (Declaration of
Michael T. Newman (“Newman Decl.”) ¶ 5, Docket # 14-1.) Newman further asserts that he has
conducted a search of both the Department of Veterans Affairs’ hard files and computer databases
pertaining to tort claims filed against the Department of Veterans Affairs for care provided at the
Medical Center and has found no record of any claim filed by Bell. (Id. ¶¶ 4-5.) Although Bell’s
complaint and supplements thereto fail to address whether Bell exhausted his administrative remedies prior to filing this case, his failure to do so is captured within the Department of Veterans Affairs’ records. Such records are reliable and, in this case, uncontested. Therefore, I take judicial notice of Bell’s failure to exhaust.
Moreover, the FTCA provides that a claimant shall not initiate a court action unless the
agency presented with his claim has finally denied it. If an agency fails to make a final disposition of
the claim within six months after it is filed, the claim will be deemed finally denied. 28 U.S.C. §
2675(a). Although Bell’s response to the defendant’s motion regarding exhaustion is difficult to understand, it appears he is arguing that he fully exhausted his claim by presenting his documents to
Newman. (Docket # 15 at 1.) Bell does not state when he presented Newman with his claim, nor
does he state when or if the claim was denied by the Department of Veterans Affairs. However,
Bell’s complaint stems from an incident on October 24, 2013. Therefore, even if Bell did present his

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claim to the Department of Veterans Affairs immediately after it occurred, dismissal would still be
appropriate because he filed this instant action well before the six-month period for deeming a claim
“finally denied.” See 28 U.S.C. § 2675.
Accordingly, Bell’s claims will be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state
a claim upon which relief can be granted.
ORDER
NOW, THEREFORE, IT IS ORDERED that the defendant’s motion to dismiss (Docket #
13) is hereby GRANTED and the plaintiff’s complaint is hereby DISMISSED;
IT IS FURTHER ORDERED that this case is DISMISSED;
IT IS FURTHER ORDERED that the clerk of court enter judgment accordingly.

Dated at Milwaukee, Wisconsin this 12th day of February, 2014.

BY THE COURT
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge

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