United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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).
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.
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).
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),
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 ...