United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Statement of Facts and of the Case
The pro se plaintiff is a federal prisoner, who was formerly housed at the United States Penitentiary-Canaan in the summer of 2011. The plaintiff is currently suing the United States, alleging that in June of 2011 the prison served inmates chicken fajitas. (Doc. 1.) According to the plaintiff, the chicken was bad, and was tainted with salmonella bacteria. (Id.) Consequently, the plaintiff contracted food poisoning, and suffered excruciating pain and symptoms which included headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to eat and profuse sweating. (Id.) Alleging negligence on the part of the prison in the preparation and service of this food, the plaintiff has brought this action seeking damages from the United States, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.
On March 6, 2014, the defendant filed a motion to dismiss this complaint, which we also construed as a motion for summary judgment, in this case. (Doc. 26.) This motion alleged that the plaintiff had failed to exhaust his administrative remedies within the prison before filing this lawsuit, something that prisoner plaintiffs are required by law to do as a prerequisite to seeking relief in federal court. With respect to this administrative exhaustion requirement, the undisputed evidence reveals the following chronology of events: The plaintiff’s administrative tort claim was received for filing on May 31, 2013. (Doc. 27, Declaration of Kimberly Sutton (Ex. A) ¶ 3.) The plaintiff’s Complaint was then docketed by the Court on June 10, 2013, ten days after the plaintiff commenced the administrative claim process but months before that process concluded. (Doc. 1.) The Bureau of Prisons denied plaintiff’s tort claim on November 29, 2013, some six months after this complaint was filed. (Doc. 27, Sutton Decl. (Ex. A) ¶ 5.) Thus, the plaintiff had not received a final denial by the agency before filing a complaint in federal court as is required by 28 U.S.C. §2675(a).
On these facts, the defendant has now moved to dismiss this complaint, citing the plaintiff’s failure to exhaust administrative remedies within the prison system prior to filing this complaint. Such administrative exhaustion is required by law before an inmate may proceed into federal court. The parties have fully briefed this motion, (Docs. 27, 33, 36 and 37.) and this motion is, thus, ripe for resolution.
For the reasons set forth below, it is recommended that the motion to dismiss be granted, but without prejudice to the re-filing of a complaint now that the plaintiff has completed the process of exhausting his administrative tort claims.
A. The Parties’s Burdens of Proof and Persuasion
1. Motion to Dismiss Rule 12(b)(1)
The defendant moved to dismiss this FTCA claim for failure to exhaust pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) permits the dismissal of an action for “lack of subject matter jurisdiction.” A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. See id.; PBGC v. White, 998 F.2d 1192, 1196 (3d Cir.1993). In reviewing a factual attack, the court may consider evidence outside the pleadings. See Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.1997) (citing Mortensen, 549 F.2d at 891). Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)(footnote omitted) holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
Here, the defendant’s motion presents a factual attack upon subject matter jurisdiction, arguing that this Court lacks jurisdiction over this claim due to the plaintiff’s failure to exhaust his administrative remedies. When presented with such a fact-bound jurisdictional challenge are cautioned that:
A factual challenge contests the existence of subject matter jurisdiction, apart from any pleadings. Id. In reviewing a factual challenge, the court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case, ” even where disputed material facts exist. Mortensen, 549 F.2d at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Gould, 220 F.3d at 178; Mortensen, 549 F.2d at 891. If the defendant presents evidence contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiff's allegations and the plaintiff may present facts by affidavit or deposition or in an evidentiary hearing. Gould, 220 F.3d at 177; Mortensen, 549 F.2d at 891, ...