United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE
THE COURT is the Motion to Dismiss for Lack of Subject Matter
Jurisdiction (ECF No. 70) filed by the United States of
America, the only remaining Defendant in this action.
Defendant alleges that Plaintiff Carlos Lajuan Cathey filed
this lawsuit prematurely, as he failed to exhaust his claim
against the United States under the Federal Tort Claims Act
(FTCA). Having considered the submissions of the parties, the
record, and relevant legal authority, the Undersigned United
States Magistrate Judge recommends that the Defendant's
Motion to Dismiss (ECF No. 70) be granted.
time he filed suit, Cathey was a prisoner in the custody of
the Federal Bureau of Prisons (“BOP”) housed at
the Federal Correctional Complex in Yazoo City, Mississippi.
He filed his initial Complaint (ECF No. 1) on October 31,
2016, alleging violations of his constitutional rights
pursuant to 42 U.S.C. § 1983. He then filed an Amended
Complaint (ECF No. 10) on March 23, 2017, adding claims
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) and the FTCA.
Plaintiff alleges that another inmate hit him in the head
with a lock in October 2014. After being released from
“SHU, ” he complained about “floaters in
[his] eye” and blurry vision. However, he contends that
the individual defendants refused to timely provide adequate
medical treatment and that the delay resulted in a tumor and
blindness (ECF No. 10).
§ 1983 and Bivens claims have since been
dismissed (ECF Nos. 13 & 57). Therefore, his only
remaining claim is his FTCA claim against the United States.
Defendant filed the present Motion (ECF No. 70) on April 19,
2018. It alleges that Cathey filed an administrative claim
under the FTCA on August 18, 2016, but before the BOP could
adjudicate his claim, Cathey filed the instant lawsuit (ECF
No. 71). It alleges that because Cathey did not allow the
agency to adjudicate his administrative claim, he did not
properly exhaust his administrative remedies under the FTCA;
as a result, this Court lacks jurisdiction. In response,
Plaintiff argues that he did exhaust or, in
the alternative, his claim could not be resolved at the
administrative level; therefore, exhaustion was excused (ECF
No. 74). However, his response focuses only on the internal
prison grievance procedure. In reply (ECF No. 75), Defendant
argues that exhaustion under a prison's administrative
remedy program does not constitute exhaustion under the FTCA.
FTCA waives the federal government's sovereign immunity
with regard to suits in tort stemming from the conduct of a
federal employee acting within the scope of employment.
See 28 U.S.C. § 1346. “The FTCA allows
suits against the United States for personal injury or death
caused by a government employee's negligence ‘under
circumstances in which a private person would be liable under
the law of the state in which the negligent act or omission
occurred.'” Sanders v. United States, 736
F.3d 430, 435 (5th Cir. 2013) (quoting Hannah v. United
States, 523 F.3d 597, 601 (5th Cir. 2008)); see
also 28 U.S.C. §§ 1346(b)(1) & 2674.
question of whether the United States has waived sovereign
immunity pursuant to the FTCA goes to the court's
subject-matter jurisdiction and may therefore be resolved on
a Rule 12(b)(1) motion to dismiss.” Willoughby v.
United States, 730 F.3d 476, 479 (5th Cir. 2013)
(internal citations omitted). A court may find a lack of
subject matter jurisdiction based on “(1) the complaint
alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts.” Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996)). The
party asserting jurisdiction bears the burden of proof.
Id. (citing McDaniel v. United States, 899
F.Supp. 305, 307 (E.D. Tex. 1995)).
FTCA provides that:
[a]n 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). Cathey completed a Standard Form 95
in accordance with 28 C.F.R. § 14.2(a) on August 18,
2016. It was marked received on August 30, 2016. Cathey
sought $50, 000 for the tumor and blindness that resulted
from being hit with a lock and the delay in medical treatment
(ECF No. 70-2).
September 16, 2016, Lisa M. Sunderman, Regional Counsel with
the U.S. Department of Justice, sent Cathey a letter stating
his administrative tort claim was accepted for filing on
August 30, 2016. Cathey was informed that the Government had
six months from the acceptance date to make a final decision
(ECF No. 70-3). Cathey's administrative tort claim was
denied on February 28, 2017 (ECF No. 70-4). He has offered no
evidence to contradict this timeline, yet his present suit
was filed on October 31, 2016, before his administrative
claim was exhausted. Because the exhaustion requirement is a
“prerequisite to suit under the FTCA, ”
Cathey's failure to comply with this requirement must
result in dismissal. Life Partners, Inc. v. United
States, 650 F.3d 1026, 1030 (5th Cir. 2011) (citing
McAfee v. 5th Circuit Judges, 884 F.2d 221, 222-23
(5th Cir. 1989)).
Cathey's argument that he exhausted his administrative
remedies within the prison or was precluded from exhausting
them will not prevent dismissal, as “there are separate
procedures” for exhausting claims under the FTCA and
claims under Bivens. Martinez v. United
States, Civil Action No. 3:14-cv-810- CWR-FKB, 2016 WL
5301184, at *6 (S.D.Miss. Aug. 22, 2016) (quoting Lambert
v. United States, 198 Fed. App'x 836, 840 (11th Cir.
2006)). Additionally, neither the fact that his
administrative claim has since been denied nor the fact that
he amended his Complaint after its denial will establish
jurisdiction. First, the court must have jurisdiction
“at the time of filing” and “even if the
administrative claim has become exhausted since the time of
filing the complaint, the district court should nonetheless
dismiss the claim.” Wright v. United States,
Civil Action No. 3:12-cv-514-TSL-JMR, 2013 WL 12321422, at
*3, note 5 (S.D.Miss. Sept. 10, 2013) (quoting Hinojosa
v. United States Bureau of Prisons, 506 Fed. App'x
280, 282 (5th Cir. 2013)).
under Rule 15 of the Federal Rules of Civil Procedure,
“[a]n amendment to a pleading relates back to the date
of the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct, transaction,
or occurrence set out . . . in the original pleading . . .
.” Fed.R.Civ.P. 15(c)(1)(B). Because Cathey's
factual allegations have not changed, and his FTCA claim
arose out of the same conduct as his original claims, his
Amended Complaint (ECF No. 10) relates back to October 31,