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 December 9, 2013, the defendant filed a motion to dismiss this complaint, which we also construed as a motion for summary judgment. (Doc. 23.) 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. In support of this motion, the defendant presented a simple, straightforward factual narrative, and submitted a declaration which attested that Yaromich never filed an administrative tort claim of the type prescribed by the FTCA, a Form SF 95 or its equivalent. (Doc. 24-1.)
For his part, Yaromich responded to this motion with detailed factual submissions, by presenting the Court with two forms SF-95, dated in February 2012 and June 2013, which he attests he submitted in a timely fashion to the Bureau of Prisons. (Doc. 30.) In response to this assertion by the plaintiff, the defendant has filed a reply brief, albeit a reply brief which does not provide further factual support for the defendant’s assertion that Yaromich failed to exhaust his administrative remedies. (Doc. 31.) Instead, the defendant simply asserts that Yaromich has the burden of proof on the issue of exhaustion, and argues that he has failed to meet his burden of proof in this case. (Id.)
Thus, we are presented with a factual dispute regarding whether, and to what extent, the plaintiff has attempted to exhaust his administrative remedies. This factual dispute is presented to us on a factual record, where the plaintiff swears that he submitted two administrative tort claims to the Bureau of Prisons through staff between February 2012 and June 2013, but the Bureau of Prisons legal office simply attests that they have no record of receiving that claim. On this contested factual record, we conclude that the question of whether the plaintiff exhausted his administrative remedies– a jurisdictional prerequisite to filing this lawsuit–cannot be determined without further factual proof, and an assessment of the credibility of the plaintiff’s claims, something which cannot be done on the present, incomplete, factual record. Therefore, it is recommended that this motion be denied with respect to this exhaustion claim, and the issue of exhaustion of administrative remedies be deferred for further consideration on a complete factual record.
A. The Parties’s Burdens of Proof and Persuasion
The defendant moved to dismiss this FTCA claim, in part, for failure to exhaust pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1), in turn, 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 gr’ds 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, 893 n. 18. “[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination.” Gould, 220 F.3d at 177.
Moyer Packing Co. v. United States, 567 F.Supp.2d 737, 748 (E.D. Pa. 2008) (emphasis added).
This principle, which cautions us that “[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination, ” is specifically applicable to jurisdictional defenses raised in Federal Tort Claims Act litigation. Indeed, the leading cases articulating this principle are FTCA lawsuits. See e.g., Gould Electronics Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000) holding modified by Simon v. United States, 341 F.3d 193 (3d Cir. 2003)(“if there is a dispute of a material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination”); Moyer Packing Co. v. United States, 567 F.Supp.2d 737, 748 (E.D. Pa. 2008). Furthermore, this Court has held in an FTCA action that ...