United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the United States of America, moves to dismiss Plaintiff
Darryl Dean's claims. For the following reasons, the Court
grants the motion.
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. Plaintiff alleges that the collision
damaged his car and injured his back. Plaintiff then called 911,
which he asserts “neglectfully mishandled the
call.” Emergency assistance never arrived, and
plaintiff sought medical attention on his own.
sued the City of New Orleans and the United States on August
10, 2017, alleging a violation of the Americans with
Disabilities Act (ADA).The Court has dismissed plaintiff's
ADA claim against the City of New Orleans. The United States
now moves to dismiss for lack of jurisdiction and for failure
to state a claim.
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).
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.
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.
Federal Tort Claims Act
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).
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 ...