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Scott v. United States

United States District Court, E.D. Pennsylvania

December 9, 2019



          Savage, Judge

         Adam 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.[1] 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.


         As 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.[2] 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.[3] Scott claims he was not provided any medical attention at the time of the fall.[4] 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.”[5] 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.[6] Scott complains that although he has requested treatment for his injuries, the prison has refused to provide any.[7]

         On July 4, 2018, Scott submitted an administrative claim complaining about his injuries and lack of treatment.[8] He claimed that the latter constituted medical malpractice and occurred on June 7, 2018.[9] On February 22, 2019, his claim was denied.[10] He filed his complaint on May 23, 2019.

         The 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.[11] 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.[12]In its reply, the government argues that review of a stale claim does not extend or revive the limitations period.[13] 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.[14]

         Legal Standard

         The 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).

         A 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).

         The 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.


         The 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. 2009).

         The 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 ...

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