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Collier v. Caraway

United States District Court, S.D. Indiana, Terre Haute Division

January 24, 2017

ANTHONY LEON COLLIER, Plaintiff,
v.
JOHN F. CARAWAY, et al. Defendants.

          ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

          MARK J. DINSMORE UNITED STATES MAGISTRATE JUDGE.

         This 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.[1]

         I. Background

         In November 2014, [2] 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 claim.[3]

         II. Legal Standard

         Federal 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. 2001).

         III. Discussion

         Defendants 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).

         Plaintiff 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).

         The 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 section.

28 U.S.C. § 2675(a) (emphasis added).

         In McNeil, the Supreme Court definitively interpreted the phrase “shall not be instituted, ” making clear that § 2675(a) says what it means and means what it says:

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 ...

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