United States District Court, M.D. Pennsylvania
EDWIN M. KOSIK, District Judge.
This civil action was filed by Plaintiff, Zeewee Dakar Mpala, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 et seq. In the complaint, Plaintiff alleges that his rights were violated while incarcerated at the United States Penitentiary at Lewisburg, Pennsylvania. He was released from custody on February 28, 2008, and commenced this action on September 20, 2011. Pending before the court is a motion to dismiss filed by the sole defendant, the United States of America. For the reasons which follow, the motion will be granted.
The complaint in this matter and supplements thereto make it clear that Plaintiff pursues this action exclusively under the FTCA. (Docs. 1, 13, 18.) He alleges that his rights were violated while incarcerated when: (1) he was given a PPD test by injection rather than a non-invasive chest x-ray or Gold blood testing; (2) his mail was tampered with; (3) he was forced to cell with a very ill inmate; and (3) following his release, an outside physician failed to timely notify him that he tested positive for Hepatitis C and conspired with prison staff to cover up this condition.
II. Motion to Dismiss Standard
Defendant first moves to dismiss the complaint for failure to exhaust pursuant to Federal Rule of Civil Procedure 12(b)(1). 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, Defendant's motion presents a factual attack upon the subject matter jurisdiction, arguing that this court lacks jurisdiction over this claim due to Plaintiff's failure to exhaust his administrative remedies. When presented with such a fact-bound jurisdictional challenge, the following applies:
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).
Defendant, United States, seeks the dismissal of the complaint on the basis of lack of subject matter jurisdiction because Plaintiff failed to file an administrative tort claim on any of the issues presented in his complaint. In the alternative, Defendant maintains that: (1) the claims are barred by the statute of limitations and (2) to the extent Plaintiff is suing the United States for malpractice, his claims are subject to dismissal because Plaintiff does not have a medical expert and has failed to timely file a certificate of merit. Because the first argument is dispositive of the motion, the alternative arguments need not be addressed.
Defendant alleges that Plaintiff did not exhaust his administrative remedies before bringing this FTCA action. Plaintiff's alleged failure to exhaust his administrative remedies may have substantive significance for him since as a prerequisite to suit under the FTCA, a claim must first be presented to the federal agency and be denied by the agency, or be deemed to be denied. Section 2675(a) of Title 28, United States Code, provides in pertinent part:
An action shall not be instituted against the United States for money damages for injury or loss of property or personal injury... 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 the 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 section....
In general, the United States enjoys sovereign immunity from suit unless it otherwise consents to be sued. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). The United State's "consent to be sued must be unequivocally expressed', and the terms of such consent define the court's subject matter jurisdiction." Id. The Federal Tort Claims Act constitutes "a limited waiver of the United States's sovereign immunity." Id. The FTCA provides that the United States shall be liable, to the same extent as a private individual, "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[.]" 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674. Therefore, prior to commencing an FTCA action, a ...