United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTION TO DISMISS
WALTON PRATT, United States District Court Judge
matter is before the Court on a Motion to Dismiss filed by
Defendants the United States of America (the “United
States”). On December 9, 2016, Plaintiff William Jerome
Bibbs' (“Bibbs”) filed a complaint under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671, et seq. The amended complaint sought monetary
damages for allegations that the United States mistreated his
liver disease. The United States now seeks dismissal of the
claims alleged against it arguing that Bibbs failed to
exhaust his administrative remedies as required by the FTCA
prior to filing this civil action. Bibbs has not opposed the
motion and the time to do so has passed. For the reasons
explained below, the United States' unopposed Motion to
Dismiss, dkt , is granted.
United States argues dismissal is appropriate because subject
matter jurisdiction is absent. Subject matter jurisdiction
“defines the court's authority to hear a given type
of case, ” United States v. Morton, 467 U.S.
822, 828 (1984), and is the first question in every case.
Sherman v. Community Consol. Sch. Dist. 21 of Wheeling
Twp., 980 F.2d 437, 440 (7th Cir. 1992), cert.
denied, 114 S.Ct. 2109 (1994).
“Jurisdiction over any suit against the Government
requires a clear statement from the United States waiving
sovereign immunity, together with a claim falling within the
terms of the waiver.” United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003)
(internal citations omitted).
procedural vehicle used by the United States in challenging
the Court's jurisdiction is its motion to dismiss
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure. A court ruling on a Rule 12(b)(1) motion to
dismiss must accept as true all well-pled factual allegations
and draw reasonable inferences in favor of the plaintiff.
Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191
(7th Cir. 1993). However, where a party raises a factual
question concerning jurisdiction, “the district court
is not bound to accept as true the allegations of the
complaint which tend to establish jurisdiction.”
Grafon Corp. v. Hauserman, 602 F.2d 781, 783 (7th
Cir. 1979). In such circumstances, the district court may
properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted to
determine whether subject matter jurisdiction exists.
Id. The burden of proof to demonstrate subject
matter jurisdiction is on the party asserting jurisdiction.
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d
942, 946 (7th Cir. 2003).
against the United States for monetary damages are barred by
the doctrine of sovereign immunity, except in specific
circumstances when the government consents to be sued. See
Lehman v. Nakisan, 453 U.S. 156, 160 (1981);
United States v. Testan, 424 U.S. 392, 399 (1976);
United States v. Sherwood, 312 U.S. 584, 586 (1941).
The exclusive waiver of sovereign immunity for actions
sounding in tort against the United States, its agencies, and
its employees acting within the scope of their employment is
the FTCA. In addition, the FTCA is the sole remedy for any
tort claim resulting from the negligent or wrongful act of a
government employee acting within the scope of his
employment. Couch v. United States, 694 F.3d 852,
856 (7th Cir. 2013). The language of the FTCA is clear that a
claimant must seek administrative review prior to filing an
action in federal court under the FTCA, and must allow that
process to be exhausted.
Department of Justice has promulgated regulations prescribing
the manner of presenting an administrative claim under the
FTCA. Title 28 C.F.R. § 14.2(a) provides that a claim is
deemed to be presented when an executed Standard Form 95 or
other written notification of an incident is received and is
accompanied by a claim for monetary damages in a sum certain.
For Bibbs to comply with these provisions, he must have filed
an administrative tort claim with the agency within two years
of the date his claim accrued, and must await a denial or the
passage of six months before filing suit.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
United States argues that Bibbs has not exhausted his
administrative remedies and thus, this Court lacks subject
matter jurisdiction. In support of its argument, the United
States has presented an affidavit from Sarah
Allison-Armstrong. She explains that Bibbs submitted a notice
of his tort claim - Standard Form 95 - with the Bureau of
Prisons on January 18, 2017, a date subsequent to the filing
of this civil action. It was rejected and returned to Bibbs
because it was incomplete. Bibbs then submitted an amended
tort claim on March 1, 2017, which was accepted for
consideration. The BOP has not denied the administrative
claim and the six-month period for the claim to be
“deemed denied” has not run. Because this
prerequisite must be met for any tort suit against the
government to proceed, Bibbs' claim is premature.
result, this Court lacks jurisdiction over the FTCA claim,
and therefore must dismiss this claim pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. See
McNeil v. United States, 508 U.S. 106, 107 (1993)
(Section 2675(a) requires that a claimant file a claim with
the appropriate Federal agency, that the agency deny the
claim, or not process the claim within six months of the
filing, before any legal action may be instituted.).
FTCA is clear that no legal action shall be initiated until
the claim process is properly exhausted. Bibbs' FTCA
claim is premature because he had not exhausted his
administrative remedies at the time this action was filed.
For the reasons stated above, the FTCA claim against the
United States must be dismissed for lack of subject matter
jurisdiction. Accordingly, the Court GRANTS the
Defendant's Motion to Dismiss, dkt , without
prejudice. A dismissal for lack of subject matter
jurisdiction is not on the merits. Bunker Ramo Corp. v.
United Business Forms, Inc., 713 F.2d 1272, 1277 (7th
Cir. 1983); Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004); Johnson v.
Wattenbarger, 361 F.3d 991, 993 (7th Cir. 2004). A court
that lacks subject matter jurisdiction cannot dismiss a case
with prejudice. Id.
partial final judgment shall issue at this time as to the
claims resolved in this Entry. The clerk is
directed to update the docket to reflect that the
United States is no longer a defendant to this action.