United States District Court, W.D. Louisiana, Lafayette Division
WILBERT BRUNO, ET AL.
UNITED STATES OF AMERICA
UNASSIGNED DISTRICT JUDGE
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.
pending is the Rule 12(b)(1) motion to dismiss for lack of
jurisdiction, which was filed by the defendant, the United
States of America. (Rec. Doc. 7). The motion is unopposed.
The motion was referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of this
Court. For the following reasons, it is recommended that the
motion be GRANTED.
medical malpractice lawsuit was brought by the surviving
husband and children of Lucille Bruno. They claim that Mrs.
Bruno sought treatment at Southwest Primary Healthcare in
Opelousas, Louisiana, with regard to a lump in her breast and
was seen by nurse Debbie Vidrine at that facility. They claim
that Mrs. Bruno died as a result of breast cancer because
Nurse Vidrine and Southwest Primary Healthcare failed to
promptly send her for diagnostic testing and failed to
promptly diagnose her breast cancer.
plaintiffs alleged that Southwest Primary Healthcare is a
federal healthcare facility owned and operated by the United
States. The defendant represented in its briefing that the
plaintiffs' claims are governed by the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2675,
pursuant to the Federally Supported Health Centers Assistance
Act, 42 U.S.C. § 233.
administrative claim in Mrs. Bruno's name only was filed
with the Department of Health and Human Services (“the
Department”) on April 26, 2016, and that claim was
denied on February 6, 2017. (Rec. Doc. 7-3 at 2). A second
administrative claim was presented to the Department on
behalf of the plaintiffs, in which they asserted their own
claims for Mrs. Bruno's wrongful death and a survival
action on behalf of Mrs. Bruno, on April 17, 2017. (Rec. Doc.
7-3 at 2). Their claims were presented to the Department
after this lawsuit was filed on April 10, 2017. (Rec. Doc.
1). As of the filing of the instant motion, the government
had not yet acted on the second administrative claim. (Rec.
Doc. 7-3 at 2).
defendant contends that the plaintiffs' complaint should
be dismissed for lack of subject-matter jurisdiction because
the plaintiffs failed to exhaust their administrative
remedies before filing suit.
The Standard for Resolving a Ruler 12(b)(1)
Rule of Civil Procedure 12(b)(1) requires a court to dismiss
claims for which the court lacks subject matter jurisdiction.
“A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the
case.” A lack of subject matter jurisdiction may
be found based on the content of the complaint alone, based
on the complaint supplemented by undisputed facts in the
record, or based on the complaint supplemented by undisputed
facts plus the court's resolution of disputed
facts. However, in resolving a motion to dismiss
for lack of subject-matter jurisdiction, the court must
accept all factual allegations in the plaintiff's
complaint as true.
The Court Lacks Subject-Matter Jurisdiction
lawsuit cannot be filed against the United States under the
FTCA unless (a) the claimant presented the claim to the
appropriate federal agency and (b) the claim was finally
denied - either by the agency denying the claim in writing or
six months having elapsed without a written denial being
mailed to the claimant. When these requirements are not met
before a suit is filed, the claim has not been
administratively exhausted. The court's subject-matter
jurisdiction over FTCA claims is conditioned upon a
plaintiff's compliance with these statutory requirements.
Thus, exhaustion of the administrative remedy found in 28
U.S.C. § 2675(a) is a jurisdictional prerequisite to
suit. In other words, the court lacks
subject-matter jurisdiction over a claim brought under the
FTCA if the plaintiff failed to exhaust his administrative
remedies before filing suit.
FTCA requires each person asserting a claim to present his or
her own claim to the applicable government agency before
filing suit. Additionally, a wrongful death claim
cannot be asserted under the FTCA before the decedent's
death. In this case, Mrs. Bruno's individual
claim was presented to the Department on April 26, 2016.
(Rec. Doc. 7-3 at 2). She allegedly passed away on December
7, 2016. (Rec. Doc. 1 at 9). Accordingly, the first
administrative claim could only have been for damages that
she personally sustained prior to her death. In this lawsuit,
however, which was filed after Mrs. Bruno died but before the
plaintiffs presented their own claims to the Department, the
plaintiffs asserted claims for her wrongful death and also
asserted a survival action. Additionally, at the time that
the suit was filed, the Department had denied only Mrs.
Bruno's individual pre-death claim, and no final denial