United States District Court, E.D. Pennsylvania
Scott, a federal prisoner, sues the government for negligence
and medical malpractice under the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671 et seq., stemming from
a fall from his bed and the prison's alleged failure to
treat his resulting injuries. The government moves to dismiss
the complaint, arguing Scott did not timely exhaust his
administrative remedies. Because we agree with the
government, we shall dismiss the complaint.
recounted by Scott in his complaint, on September 30, 2011,
while housed at the Federal Detention Center in Philadelphia,
he fell from his top bunk, which had no railing, and hit his
head on a metal table. Since then, he has experienced head and
chest pain and tightness, constipation, an inability to
breathe through his left nostril, heart problems, and
shortness of breath. Scott claims he was not provided any
medical attention at the time of the fall. However, the
records he attaches to his complaint show that on the same
date he fell he was “evaluated and treated by Health
Services for injuries after reporting a fall from [his] bunk
bed.” Also, medical professionals later
diagnosed all of Scott's injuries with the exception of
his shortness of breath and the tightness in his head, both
of which he attributes to a deviated septum suffered in the
fall. Scott complains that although he has
requested treatment for his injuries, the prison has refused
to provide any.
4, 2018, Scott submitted an administrative claim complaining
about his injuries and lack of treatment. He claimed that
the latter constituted medical malpractice and occurred on
June 7, 2018. On February 22, 2019, his claim was
denied. He filed his complaint on May 23, 2019.
government moves to dismiss for lack of subject matter
jurisdiction because Scott failed to file his administrative
claim within two years of the September 30, 2011
incident. Scott responds that the Federal Bureau
of Prisons (FBOP) accepted his untimely claim and that the
discovery rule tolled the two-year limit to present his
claim.In its reply, the government argues that
review of a stale claim does not extend or revive the
limitations period. They also maintain that the discovery
rule is inapplicable because Scott has been aware of his
injuries since they occurred and the quality or lack of
medical treatment for years.
standard of review of a motion to dismiss made pursuant to
Rule 12(b)(1) depends on whether the motion is a facial
attack or a factual attack. See Constitution Party of Pa.
v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014);
Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d
Cir. 2006). Consequently, we must distinguish between facial
attacks and factual attacks. A facial attack “is an
argument that considers a claim on its face and asserts that
it is insufficient to invoke the subject matter jurisdiction
of the court” because of some jurisdictional defect.
Constitution Party, 757 F.3d at 358. In reviewing a
facial attack, as we do in considering a Rule 12(b)(6)
motion, we accept the well-pleaded allegations in the
complaint as true and draw all reasonable inferences arising
from them in favor of the plaintiff. Gould Elecs., Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
factual attack is “an argument that there is no subject
matter jurisdiction because the facts of the case . . . do
not support the asserted jurisdiction.”
Constitution Party, 757 F.3d at 358. In other words,
in a factual challenge to jurisdiction, the defendant
disputes the allegations on which jurisdiction depends. In
that instance, we need not accept plaintiff's allegations
as true and we may consider materials outside the complaint
to determine whether the exercise of federal jurisdiction is
proper. CNA v. United States, 535 F.3d 132, 139, 145
(3d Cir. 2008).
government makes a facial challenge. It argues that the court
lacks jurisdiction because it is apparent from the complaint
that Scott did not timely exhaust his administrative
remedies. Thus, we shall accept as true the facts as they
appear in the complaint and draw all possible inferences from
those facts in Scott's favor.
FTCA is “a limited waiver of the sovereign immunity of
the United States.” Miller v. Phila. Geriatric
Ctr., 463 F.3d 266, 270 (3d Cir. 2006). In order to make
a claim under the FTCA, the claimant “first must file
[his] claim with the administrative agency allegedly
responsible for [his] injuries.” Santos ex rel.
Beato v. United States, 559 F.3d 189, 193 (3d Cir.
relevant statute provides:
An action shall not be instituted upon a claim against the
United States for money damages 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,
unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim ...