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Dean v. United States

United States District Court, E.D. Louisiana

January 16, 2018

DARRYL DEAN
v.
UNITED STATES OF AMERICA ET AL.

         SECTION “R” (2)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE.

         Defendant, the United States of America, moves to dismiss Plaintiff Darryl Dean's claims.[1] For the following reasons, the Court grants the motion.

         I. BACKGROUND

         This case arises out of injuries allegedly sustained by Plaintiff Daryl Dean, a disabled veteran and retired police sergeant. On August 10, 2016, plaintiff hit “a severely large water-filled pothole” while driving down Moss Street in New Orleans.[2] Plaintiff alleges that the collision damaged his car and injured his back.[3] Plaintiff then called 911, which he asserts “neglectfully mishandled the call.”[4] Emergency assistance never arrived, and plaintiff sought medical attention on his own.[5]

         Plaintiff sued the City of New Orleans and the United States on August 10, 2017, alleging a violation of the Americans with Disabilities Act (ADA).[6]The Court has dismissed plaintiff's ADA claim against the City of New Orleans.[7] The United States now moves to dismiss for lack of jurisdiction and for failure to state a claim.[8]

         11. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action if the court lacks jurisdiction over the subject matter of the plaintiff's claim. Motions submitted under Rule 12(b)(1) allow a party to challenge the court's subject matter jurisdiction based upon the allegations on the face of the complaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017) (quoting Barrera-Montenegro, 74 F.3d at 659). The plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).

         To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         A legally sufficient complaint must establish more than a “sheer possibility” that plaintiff's claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Twombly, 550 U.S. at 555. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.

         III. DISCUSSION

         A. Federal Tort Claims Act

         The United States construes plaintiff's complaint as asserting a violation of the Federal Tort Claims Act (FTCA). The FTCA allows a plaintiff to recover damages for injuries “resulting from the negligent or wrongful act or omission of any employee of the [U.S.] Government while acting within the scope of his office or employment.” 28 U.S.C. § 2679. FTCA claims may be brought against only the United States “and not the responsible agency or employee.” Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988); see also 28 U.S.C. §§ 2679(a), (b)(1) (providing that the FTCA does not authorize suits against federal agencies or federal employees acting within the scope of their employment). Before filing suit in federal court, a claimant must first present her claim to the appropriate federal agency. 28 U.S.C. § 2675(a). Administrative exhaustion is a jurisdictional prerequisite to filing a lawsuit under the FTCA. Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981); see also Baker v. McHugh, 672 F. App'x 357, 362 (5th Cir. 2016).

         Plaintiff does not allege in his complaint that he presented his tort claim to any federal agency before filing this lawsuit. Nor does he offer any evidence, in response to the United States' motion to dismiss, of administrative exhaustion. Plaintiff also fails to allege how his injuries resulted from the negligence or wrongful acts of any federal employee. Therefore, to the extent plaintiff alleges a tort claim against the ...


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