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Morris v. United States

United States District Court, W.D. Louisiana, Lake Charles Division

March 6, 2018

MELVIN B. MORRIS, JR.
v.
UNITED STATES OF AMERICA

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Dismiss [doc. 3] filed by the government pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff Melvin B. Morris, who is represented by counsel in this matter, opposes the motion. Doc. 5. The government has filed a reply and Morris was granted leave to file a sur-reply. Docs. 6, 9. Accordingly, the matter is now ripe for review.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For reasons stated below, IT IS RECOMMENDED that the Motion to Dismiss be DENIED.

         I.

         Background

         This action arose during Morris's incarceration at the Federal Correctional Institute at Oakdale, Louisiana (“FCIO”). He alleges that he injured his leg during an altercation with another inmate on November 5, 2014, and that FCIO staff failed to properly diagnose and treat his injury until the time of his release from FCIO on March 12, 2015. Doc. 1, pp. 1-3. He states that he continues to experience pain and disability. Id. at 3.

         Morris filed suit against the government in this court on November 5, 2017, under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., based on the alleged medical malpractice of FCIO employees. Id. at 1-5. The government now moves to dismiss the suit, asserting that Morris failed to properly exhaust his administrative remedies with the Bureau of Prisons (“BOP”) as required under the FTCA.

         II.

         Law & Analysis

         A. Rule 12(b)(1)

         A motion under Rule 12(b)(1) attacks the court's jurisdiction to hear and decide the case. Fed.R.Civ.P. 12(b)(1). The burden lies with the party seeking to invoke the court's jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Lack of subject matter jurisdiction may be found based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Id. On a facial attack to subject matter jurisdiction, which is based on the sufficiency of the complaint, court accepts all well-pleaded allegations in the complaint as true and construes those allegations in a light most favorable to the plaintiff. Garcia v. Copenhaver, Bell & Associates, M.D.'s, P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997); Pike v. Office of Alcohol and Tobacco Control of the La. Dep't of Rev., 157 F.Supp.3d 523, 533 (M.D. La. 2015).

         The court is not required to show such deference when resolving factual attacks, however. “On a factual attack of subject matter jurisdiction, a court's power to make findings of fact and to weigh the evidence depends on whether the . . . attack . . . also implicates the merits of plaintiff's cause of action.” Taylor v. Dam, 244 F.Supp.2d 747, 753 (S.D. Tex. 2003) (quoting Garcia, 104 F.3d at 1261). Where the facts necessary to sustain jurisdiction do not implicate the merits of the plaintiff's case,

the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed ...

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