United States District Court, W.D. Louisiana, Lake Charles Division
MELVIN B. MORRIS, JR.
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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).
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
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 ...