United States District Court, S.D. Indiana, Terre Haute Division
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT
J. Dinsmore United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Leave to File a Second Amended Complaint. [Dkt. 85.]
For the following reasons, Plaintiff's Motion [Dkt.
85] is DENIED IN PART.
November 2014,  Plaintiff, initially proceeding pro
se, brought suit in this Court alleging Bivens
claims and a Federal Tort Claims Act (FTCA) claim stemming
from improper medical treatment of his eye disorder.
[Dkt. 1.] At the time Plaintiff filed his lawsuit,
Plaintiff's Notice of Tort Claim, filed on October 24,
2014, was pending with the Bureau of Prisons. [Dkt. 88-1
at 2.] The BOP administratively denied Plaintiff's
tort claim on March 11, 2015. [Id.] In the interim,
Plaintiff's claims were screened twice, leaving only
certain Bivens claims. [Dkt. 9; Dkt.
15 (amended complaint); Dkt. 16.] Plaintiff has
since acquired counsel [Dkt. 60] and now seeks to
amend his complaint to once again allege an FTCA
Rule of Civil Procedure 15(a) provides that the “court
should feely give leave” to amend the pleadings
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). Nonetheless, “the district court need not
allow an amendment . . . when the amendment would be futile,
” such as where the “added claim would not
survive a motion for summary judgment.” Bethany
Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir.
contend that Plaintiff's proposed FTCA claim would be
futile for two reasons. First, they contend that Plaintiff
failed to comply with the FTCA's exhaustion requirement,
28 U.S.C. § 2675(a), by filing this suit while
Plaintiff's administrative claim was still pending with
the BOP. Second, they contend that even if Plaintiff properly
filed his FTCA claim, his claim would be barred by the
applicable statute of limitations, 28 U.S.C. § 2401(b).
In support of their position, Defendants primarily rely upon
McNeil v. United States, 508 U.S. 106 (1993).
responds that neither the FTCA's exhaustion requirement
nor its statute of limitations are jurisdictional. Plaintiff
thus asserts that it is within the Court's power to
equitably toll the various deadlines and relate the amendment
back to an earlier-filed complaint. In support of his
position, Plaintiff primarily relies upon United States
v. Kwai Fun Wong, 135 S.Ct. 1625 (2015).
FTCA exhaustion requirement is set out in § 2675(a),
which provides in relevant part 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 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
28 U.S.C. § 2675(a) (emphasis added).
McNeil, the Supreme Court definitively interpreted
the phrase “shall not be instituted, ” making
clear that § 2675(a) says what it means and means what
The most natural reading of the statute indicates that
Congress intended to require complete exhaustion of Executive
remedies before invocation of the judicial process. Every
premature filing of an action under the FTCA imposes some
burden on the judicial system and on the Department of
Justice which must assume the defense of such actions.
Although the burden may be slight in an individual case, the
statute governs the processing of a vast multitude of claims.
The interest in ...