-ESH Wise v. Lappin et al, No. 1:2009cv00183 - Document 31 (E.D. Tex. 2011)
Court Description: MEMORANDUM OPINION regarding plaintiff's claims. Signed by Judge Thad Heartfield on 6/28/2011. (bjc, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION TIMOTHY SCOTT WISE § VS. § UNITED STATES OF AMERICA § CIVIL ACTION NO. 1:09cv183 MEMORANDUM OPINION Plaintiff Timothy Scott Wise, an inmate confined within the Bureau of Prisons, proceeding pro se, brought this lawsuit pursuant to Bivens v. Six Unknown Agents of the Bureau of Narcotics and Dangerous Drugs, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (the "FTCA"). The court previously entered an order severing the claims asserted pursuant to Bivens and assigning those claims a new civil action number. As a result, only plaintiff s FTCA claim remains before the court in this matter. Analysis The FTCA provides a limited waiver of sovereign immunity. The statute allows the United States to be held liable to the same extent as a private employer for certain common law torts of government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). However, as a jurisdictional prerequisite, the FTCA bars a claimant from bringing suit in federal court unless he filed an administrative claim with the appropriate federal agency and either obtained a written denial or waited six months. See 28 U.S.C. § 2675(a). Based on documents submitted to the court by plaintiff, it is clear that at the time this lawsuit was filed, plaintiff had not exhausted his administrative remedies either by having obtained a written denial to his administrative claim or waiting six months from the time his administrative claim was filed. Plaintiff has submitted a document demonstrating that his administrative claim was not denied until after this lawsuit was filed. In McNeil v. United States, 508 U.S. 106, 112 (1993), the Supreme Court administrative held that remedies failure prior to to filing completely an FTCA exhaust claim is a jurisdictional defect that cannot be cured by administrative exhaustion after a lawsuit is filed. After the Supreme Court issued its opinion in McNeil, the United States Court of Appeals for the Fifth Circuit reaffirmed that exhaustion of administrative remedies is jurisdictional in cases filed under the FTCA, and that the requirement cannot be waived. 46, 54 (5th Cir. 1995). Price v. United States, 69 F.3d In short, a prematurely filed FTCA claim cannot become timely by the passage of time after the complaint is filed, id. (citing McNeil, 508 U.S. at 106), and a court has no authority to equitably expand its jurisdiction beyond the limits established by Congress. 165 (5th Cir. 2001). Ramming v. United States, 281 F.3d 158, As plaintiff s administrative claim was not denied until after this lawsuit was filed, and as the proper exhaustion of administrative remedies is a jurisdictional prerequisite to pursuing an FTCA claim in federal court, the court lacks subject-matter jurisdiction over his FTCA claim. lawsuit will therefore be dismissed. 2 This Conclusion For the reasons set forth above, this matter will be dismissed for lack of subject-matter jurisdiction. An appropriate final judgment shall be entered. SIGNED this the 28 day of June, 2011. ____________________________ Thad Heartfield United States District Judge 3
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