United States District Court, M.D. Pennsylvania
EDWIN M. KOSIK, District Judge.
Before the court are Plaintiff's Objections to the Report and Recommendation of Magistrate Judge Martin C. Carlson filed on October 29, 2014 (Doc. 13), recommending that Defendant's ("United States") Motion to Dismiss be granted and that Plaintiff's Complaint be dismissed. For the reasons which follow, we will decline to adopt the Report and Recommendation of the Magistrate Judge and we will remand the action to the Magistrate Judge for further proceedings.
Plaintiff, Leonard Johnson, an inmate formerly confined at the United States Penitentiary, Canaan, Pennsylvania, brought the instant action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq. on April 18, 2014. The action is based on the alleged negligence of the prison staff at USP-Canaan in serving chicken fajitas tainted with salmonella bacteria.
On July 29, 2014, the United States filed a Motion to Dismiss (Doc. 8) and a Brief in Support thereof (Doc. 9). A Brief in Opposition (Doc. 11) was filed by Plaintiff on September 8, 2014. A Reply Brief (Doc. 12) was filed by the United States on September 18, 2014.
On October 29, 2014, a Report and Recommendation (Doc. 13) was filed by the Magistrate Judge. In the Report and Recommendation, the Magistrate Judge determined that Plaintiff's Complaint should be dismissed for lack of jurisdiction, because Plaintiff's administrative remedy was not timely filed. The Magistrate Judge recommended that the Motion to Dismiss be granted and that the action be dismissed.
Plaintiff filed Objections (Doc. 14) to the Report and Recommendation on November 17, 2014. The United States filed a Brief in Opposition to the Objections (Doc. 15) on December 1, 2014. Plaintiff filed a Reply to Defendant's Brief in Opposition to the Objections (Doc. 16) on December 12, 2014. Plaintiff filed an Amended Objection (Doc. 17) on January 12, 2015.
STANDARD OF REVIEW
When objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the Report to which objections are made. 28 U.S.C. § 636(b)(1)(c); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted by statute to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
In the Report and Recommendation, the Magistrate Judge sets forth the jurisdictional prerequisites to filing a claim under the Federal Tort Claims Act ("FTCA"). As the Magistrate Judge points out, the FTCA constitutes a limited waiver of the sovereign immunity of the United States. Compliance with the procedures prescribed by the FTCA is a prerequisite to obtaining relief under the Act. One of the prerequisites to suit under the FTCA is that a claim must first be presented to the affected federal agency and be denied by the agency, or be deemed to be denied. 28 U.S.C. § 2675(a). Additionally, the FTCA imposes a twofold obligation of timeliness upon litigants. Under the FTCA, there is a two-year period in which a claim must be tendered to the affected federal agency for its consideration. Once the agency has acted upon the administrative claim, the Plaintiff then has six months in which to proceed to court. The Magistrate Judge then addresses the doctrine of equitable tolling as it applies to an FTCA claim. The Magistrate Judge concludes that the statute of limitations bars Plaintiff's claims.
In the instant action, Plaintiff asserts that on June 25, 2011, while confined in the Special Housing Unit at USP-Canaan, he consumed chicken fajitas that were contaminated with salmonella, and as a result, he became ill. The Magistrate Judge found that the Bureau of Prisons did not become aware of Plaintiff's potential claim until September 2013. Because the claim was not presented within the two year limitation period set forth in the FTCA, 28 U.S.C. § 2401(b), the Magistrate Judge found that the claim was time barred. Further, the Magistrate Judge found that equitable tolling could not save Plaintiff's claim because Plaintiff failed to exercise due diligence.
On November 17, 2014, Plaintiff filed Objections (Doc. 14) to the Report and Recommendation. In his Objections, Plaintiff first argues that the action could not be dismissed on a Rule 12(b)(1) Motion because the statute of limitations is not jurisdictional. The United States responds that because the instant case involved a presentment issue, a Rule 12 (b)(1) Motion is appropriate. In his reply, Plaintiff cited Santos v. United States, 559 F.3d 189, 194 (3d Cir. 2009), which held that the statute of limitations is not jurisdictional and can be subject to equitable tolling.
We agree with the United States that one of the issues raised in the instant action involves the question of presentment under the FTCA and that a Motion under Rule 12 (b)(1) would be appropriate. See, White-Squire v. United States Postal Service, 592 F.3d 453 (3d Cir. 2010). However, based on the record before us and as set below, we find that factual disputes exist ...