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Walker v. United States

United States District Court, N.D. Texas, Forth Worth Division

December 18, 2017

v.
v.
UNITED STATES OF AMERICA, Defendant. ANGELA WALKER,

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of United States of America to dismiss and the supplemental motion to dismiss. Plaintiff, Angela Walker, has failed to respond to the motions, which are ripe for ruling. The court, having considered the motions, the record, and applicable authorities, finds that the motions should be granted.

         I.

         Plaintiff's Claim

         On June 16, 2017, the clerk received and filed papers submitted by plaintiff instituting this action. By order signed July 24, 2017, the court recognized it as one arising under the Federal Tort Claims Act and ordered that United States be substituted as the defendant.

         Plaintiff alleges that on February 6, 2015, she was "overdosed with a deadly dose of Dilantin" by a physician at FMC Carswell where she was then incarcerated. Doc.[1] 1 at 1. She alleges that the overdose has caused her to become wheelchair-bound and to suffer excruciating pain and mental anguish. Id. She seeks to recover $1, 000, 000.00. Id.

         II. Ground of the Motions

         United States maintains that plaintiff has not exhausted her administrative remedies. Thus, sovereign immunity has not been waived and the court lacks jurisdiction of this action.

         III.

         Applicable Legal Standards

         When considering a motion to dismiss for lack of subject I matter jurisdiction, the court construes the allegations of the| complaint favorably to the pleader. Id. However, the court is not limited to a consideration of the allegations of the complaint in deciding whether subject matter jurisdiction exists. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The court may consider conflicting evidence and decide for itself the factual issues that determine jurisdiction. Id. Because of the limited nature of federal court jurisdiction, there is a presumption against its existence. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). A party who seeks to invoke federal court jurisdiction has the burden to demonstrate that subject matter jurisdiction exists. McMutt, 298 U.S. at 178; Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921).

         IV. Analysis

         Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671-80 ("FTCA"), the United States has granted a limited waiver of sovereign immunity for torts committed by her employees acting within the scope of their employment to the same extent that a private person would be liable under state law. 2 8 U.S.C. §1346(b)(1). Under the FTCA, claims may only be brought in federal courts and only after the exhaustion of administrative remedies. Lopez v. Sentrillon Corp., 749 F.3d 347, 350-51 (5thCir. 2014) .

         Administrative remedies are exhausted by filing a claim with the appropriate agency within two years of the alleged injury. 2 8 U.S.C. § 2675(a). Presentment of an administrative claim is an absolute jurisdictional prerequisite to filing a lawsuit and must be pleaded and proven by the claimant. Bryan v. Stevens, 169 F.Supp.2d 676, 684 (S.D. Tex. 2001). Presentment requires the giving of notice of a claim and notice of the monetary value of the claim. Stancomb v. United States, 121 F.Supp.2d 1019, 1020- 21 (E.D. Tex. 2000) . See Bradley v. United States, 951 F.2d 268, 271 (10th Cir. 1991)(notice must be of a sum certain; stating that the claim is "in excess of" an amount is not sufficient). An agency is not deemed to have received notice unless the plaintiff can ...


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