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Garner v. United States

United States District Court, N.D. Texas, Dallas Division

March 6, 2018

CHARLES ALAN GARNER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         This pro se action filed by Plaintiff Charles Alan Garner has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge A. Joe Fish.

         Defendant United States of America moves to dismiss Garner's complaint under Federal Rule of Civil Procedure 12(b)(1). See Dkt. No. 21. Garner has filed a response, see Dkt. No. 25, and the United States has filed a reply, see Dkt. No. 26. The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should convert the motion to one to dismiss under Federal Rule of Civil Procedure 12(b)(6) and grant the motion to the extent that the complaint should be dismissed for failure to state a claim upon which relief may be granted.

         Applicable Background

         Garner, who is proceeding pro se but not in forma pauperis (as he filed the $400.00 filing fee to initiate this action), brings claims against the United States under the Federal Tort Claims Act (“FTCA”), alleging that he was sexually assaulted at a Department of Veteran Affairs (“VA”) hospital in 1995. See Dkt. No. 3.

         A letter from the VA (“Letter”) concerning Garner's administrative tort claim dated September 27, 2016 (included as part of Garner's complaint) reflects that Garner first presented his allegation to the VA in 2014. See Dkt. No. 3 at 2. The Letter denied Garner's claim because a “tort claim is barred unless it is presented within two years after the claim accrues” and “investigation did not support a finding of any negligent or wrongful act or omission of a VA employee acting in the scope of his or her employment.” Id. The Letter also explained that Garner had a right to present his claim to a federal district court after administrative denial. See id.

         Legal Standards

         I. The FTCA

         Under the FTCA, federal courts have “exclusive jurisdiction of civil actions on claims against the United States for money damages for personal injury caused by the negligent or wrongful acts or omissions of any federal employee while acting within the scope of his office or employment.” Esquivel-Solis v. United States, 472 F. App'x 338, 340 (5th Cir. 2012) (per curiam) (citing 28 U.S.C. § 1346(b)(1)). The FTCA's statute of limitations - under which “a tort claim against the United States ‘shall be forever barred' unless it is presented to the ‘appropriate Federal agency within two years after such claim accrues' and then brought to federal court ‘within six months' after the agency acts on the claim, ” United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1629 (2015) (quoting 28 U.S.C. § 2401(b)) - is “non-jurisdictional and subject to equitable tolling, ” id. at 1638. The Court must therefore treat motions to dismiss FTCA claims as time-barred “under Rule 12(b)(6) rather than 12(b)(1), ” as “the FTCA's statute of limitations is an affirmative defense for which the Government has the burden of proof.” Trinity Marine Prods., Inc. v. United States, 812 F.3d 481, 486 (5th Cir. 2016) (citing Sec. Indus. Ins. Co. v. United States, 702 F.2d 1234, 1251 (5th Cir. 1983); citation omitted).

         Accordingly, the Court should convert the Rule 12(b)(1) motion to dismiss based on the FTCA's statute of limitations to a Rule 12(b)(6) motion to dismiss See Fed. R. Civ. P. 12(b).

         II. Rule 12(b)(6)

         In deciding a Rule 12(b)(6) motion, the Court must “accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). To state a claim upon which relief may be granted, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise a right to relief above the speculative level, ” id. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “A claim for relief is implausible on its face when ‘the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

         While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, a plaintiff must allege more than labels and conclusions, and, while a court must accept all of a plaintiff's allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id. But, “to survive a motion to dismiss” under Twombly and Iqbal, a plaintiff need only “plead facts sufficient to show” that the claims asserted have “substantive plausibility” by stating “simply, concisely, and directly events” that Plaintiff contends entitle him or her to relief. Johnson v. City of Shelby, Miss., 574 U.S. ___, 135 S.Ct. 346, 347 (2014) (per curiam) (citing Fed.R.Civ.P. 8(a)(2)-(3), (d)(1), (e)).

         The Supreme Court of the United States “has made clear that a Rule 12(b)(6) motion turns on the sufficiency of the ‘factual allegations' in the complaint, ” Smith v. Bank of Am., N.A., 615 F. App'x 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson, 135 S.Ct. at 347; emphasis added by Smith), and the Federal Rules of Civil Procedure “do not countenance dismissal of a ...


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