United States District Court, N.D. Texas, Forth Worth Division
UNITED STATES OF AMERICA, Defendant. ANGELA WALKER,
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE.
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.
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.
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 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.
Ground of the Motions
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.
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).
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) .
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 ...