July 30, 2009
SHARON GOSHORN, INDIVIDUALLY AND THE ADMINISTRATOR OF THE ESTATE OF HER DAUGHTER, DECEASED, PLAINTIFF
PENNSYLVANIA CYTOLOGY SERVICES, DR. RICHARD L. MYEROWITZ, FAMILY HEALTH SERVICES OF SOUTH CENTRAL PENNSYLVANIA, INC., MICHAEL D. OCKER, NANCY DAY, R.N., CATHY SHEDLE, R.N., LAURICE HEINE, M.D., THE CHAMBERSBURG HOSPITAL, SUMMIT HEALTH, MARGARET FLANNAGAN, M.D., MICHAEL RUPP, M.D., ELLEN WRIGHT, C.T., KATHLEEN OWENS, C.T., KEYSTONE PATHOLOGY ASSOCIATES, INC., QUEST DIAGNOSTICS INCORPORATED, CYTO SPECIALTY LABORATORIES, AND THE UNITED STATES OF AMERICA, DEFENDANTS
The opinion of the court was delivered by: Judge Conner
AND NOW, this 30th day of July, 2009, upon consideration of defendant United States of America's motion to dismiss (Doc. 10) plaintiff's amended complaint (Doc. 1) for failure to exhaust administrative remedies, and it appearing that plaintiff must exhaust all remedies created by a federal agency before bringing a claim against the federal government in district court, see 28 U.S.C. § 2675(a), that plaintiff presented her claim to the Department of Health and Human Services on November 26, 2008 (Doc. 25, Ex. D at 4-5; Doc. 25, Ex. E at 1) in accordance with requirements set forth in 45 C.F.R. § 35.2(a), and that the agency failed to issue a final disposition of the claim within six months, and the court concluding that this lack of response constitutes a final denial of the claim in accordance with both 45 C.F.R. § 35.2(b) and 28 U.S.C. 2675(a), see Pascale v. United States, 998 F.2d 186, 188 (3d Cir. 1993), it is hereby ORDERED that defendant's motion to dismiss (Doc. 10) is DENIED. Plaintiff shall not be required to amend her complaint to plead that she has exhausted available administrative remedies.*fn1
CHRISTOPHER C. CONNER United States ...
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