United States District Court, W.D. Louisiana, Lake Charles Division
JAMES T. TRIMBLE, Jr., District Judge.
Before the court is a "Motion to Dismiss" (R. #47) filed by the United States of America who moves the court to dismiss the claims of the estate of Cassandra Womack, and of Michael Womack, Neikisha Womack, Gabriellea Perry, Jarvis Womack, Michael White and Dorothy Womack pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction. As to the estate of Cassandra Womack, the government maintains that plaintiff, Melvin Morris did not comply with the jurisdictional prerequisites, specifically that he did not file suit in an appropriate United States District Court within 6 months from the date that the Federal Bureau of Prisons ("BOP") mailed notification that the estate's claims were denied.
STATEMENT OF THE CASE
Plaintiff, Melvin Morris, brings this lawsuit individually and on behalf of the estate of his mother, Cassandra Womack. Plaintiff brings this action as succession representative on behalf of Ms. Womack's other natural children, Michael Womack, Neikisha Womack, Gabriellea Perry, and Jarvis Womack, and under Texas law, Ms. Womack's father, Michael White and mother, Dorothy Womack. In October 2003, Ms. Womack presented herself to the BOP in Tallahassee, Florida at the Federal Correctional Institution. An initial medical screening showed iron deficiency anemia; Ms. Womack was placed on iron supplements but continued to exhibit iron deficiency anemia in February 2004. Ms. Womack started to complain of abdominal pain, but no additional testing was performed by the BOP.
On June 1, 2006, Ms. Womack was transferred to the Federal Medical Center ("FMC") Carswell in Fort Worth, Texas. Ms. Womack continued to suffer from abdominal pain; in September 2006, she was seen again by doctors, but no further testing was performed.
In December 2006, a pelvic sonogram was performed, but the findings were negative. In August 2007, Ms. Womack collapsed with severe abdominal pain. A physical exam revealed a large palpable mass in her abdomen; an exploratory laparoscopy revealed a Stage IV adenocarcinoma of the ascending colon metastatic to the left and right ovaries and the fallopian tube.
Ms. Womack was subsequently released from custody on April 2, 2008, and resided in Louisiana until she passed away on February 27, 2009 from colon cancer. In his petition, plaintiff alleges that the government medical providers failed to provide the proper testing in Florida and in Texas to detect, diagnose and treat the cancer. Plaintiff alleges that the government medical providers' failure to properly diagnose and treat Ms. Womack was negligent and fell below the applicable standard of care which was a proximate cause of Ms. Womack's death.
On February 15, 2011, Melvin Morris, filed two separate tort claims for damage injury or death with the BOP, South Central Regional office. The first claim identified as TRT-SCR-2011-2513 was made on behalf of the Estate of Cassandra Womack, wherein the children of Ms. Womack sought claims of loss of consortium with their mother, past and future mental anguish, funeral and burial expenses, pecuniary damages and wrongful death and survival damages. In this claim, the claimants sought $2, 000, 000 in damages. The second claim identified as TRT-SCR-2011-03351 was filed by Melvin Morris, individually, wherein Mr. Morris sought the same type of damages in a total amount of $2, 000, 000. The BOP acknowledged receipt of both claims by letter dated April 5, 2011.
Simultaneously, plaintiff sent identical claims to the Southeast Region Office which are identified as TRT-SER-2011-02810 and TRT-SER-2011-02809. These claims were administratively closed as of April 5, 2011 via letter advising Mr. Morris that they would be handled by the South Central Region Office under the claim numbers assigned by that region.
On January 11, 2012, the BOP sent claimant two separate letters as to each separate claim requesting additional information. On March 21, 2012, when no additional information was received, the BOP again requested additional information to evaluate both claims. On May 14, 2012, by separate letters, the BOP issued two letters which expressly denied plaintiffs' claims; both letters instructed plaintiff that he had six (6) months from the date of each letter to file suit in the appropriate United States District Court.
On October 31, 2012, Mr. Morris requested reconsideration of the BOP's denial as to the letter denying the tort claim in TRT-SCR-2011-03351 as to Mr. Morris' individual claim. On January 11, 2013, the BOP denied Mr. Morris' request and informed him that he should file suit within six months of the date of the letter. On July 11, 2013, Mr. Morris filed suit on behalf of all of the claimants, including the estate of Cassandra Womack.
FEDERAL TORT CLAIMS ACT
A plaintiff filing an action pursuant to the Federal Tort Claims Act ("FTCA") must properly present his claim to the appropriate federal agency before instituting an action against the United States. The FTCA provides a claimant two years from the time an action accrues to present his claim to the appropriate agency. Once received, the agency has two years to either resolve or deny the claim. If the claim is denied, the claimant must file suit in the appropriate court within six (6) months from the date of the correspondence advising of the denied claims. Both requirements are jurisdictional in nature and must be satisfied to invoke the jurisdiction of a federal court. Courts are not free to extend the waiver beyond what Congress ...