Dean v. United States Department of Highways et al, No. 2:2017cv07672 - Document 23 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 13 Motion to Dismiss for Lack of Jurisdiction. Plaintiff's claims against the United States are DISMISSED. Party United States of America dismissed. Signed by Judge Sarah S. Vance on 1/16/2018. (ajn)
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Dean v. United States Department of Highways et al Doc. 23 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DARRYL DEAN CIVIL ACTION VERSUS NO. 17-7672 UNITED STATES OF AMERICA ET AL. SECTION “R” (2) ORD ER AN D REASON S Defendant, the United States of Am erica, m oves to dism iss Plaintiff Darryl Dean’s claim s. 1 For the following reasons, the Court grants the m otion. I. BACKGROU N D This case arises out of injuries allegedly sustained by Plaintiff Daryl Dean, a disabled veteran and retired police sergeant. On August 10 , 20 16, plaintiff hit “a severely large water-filled pothole” while driving down Moss Street in New Orleans. 2 Plaintiff alleges that the collision dam aged his car and injured his back. 3 Plaintiff then called 911, which he asserts “neglectfully 1 2 3 R. Doc. 13. R. Doc. 1 at 6. Id. 1 Dockets.Justia.com m ishandled the call.”4 Em ergency assistance never arrived, and plaintiff sought medical attention on his own. 5 Plaintiff sued the City of New Orleans and the United States on August 10 , 20 17, alleging a violation of the Americans with Disabilities Act (ADA). 6 The Court has dism issed plaintiff’s ADA claim against the City of New Orleans. 7 The United States now m oves to dism iss for lack of jurisdiction and for failure to state a claim . 8 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(1) requires dism issal of an action if the court lacks jurisdiction over the subject m atter of the plaintiff’s claim . Motions subm itted under Rule 12(b)(1) allow a party to challenge the court’s subject m atter jurisdiction based upon the allegations on the face of the com plaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). In ruling on a Rule 12(b)(1) m otion to dism iss, the court m ay rely on “(1) the com plaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the com plaint supplem ented by 4 5 6 7 8 Id. Id. Id. at 7. R. Doc. 13. R. Doc. 7. 2 undisputed facts plus the court’s resolution of disputed facts.” Moore v. Bry ant, 853 F.3d 245, 248 (5th Cir. 20 17) (quoting Barrera-Montenegro, 74 F.3d at 659). The plaintiff bears the burden of dem onstrating that subject m atter jurisdiction exists. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). To survive a Rule 12(b)(6) m otion to dism iss, plaintiffs m ust plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). 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 m isconduct alleged.” Id. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. at 555. In other words, the face of the com plaint m ust contain enough factual 3 m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff’s claim. Lorm and, 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 com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. III. D ISCU SSION A. Fe d e ral To rt Claim s Act The United States construes plaintiff’s com plaint as asserting a violation of the Federal Tort Claim s Act (FTCA). The FTCA allows a plaintiff to recover dam ages for injuries “resulting from the negligent or wrongful act or om ission of any em ployee of the [U.S.] Governm ent while acting within the scope of his office or employment.” 28 U.S.C. § 2679. FTCA claim s m ay be brought against only the United States “and not the responsible agency or em ployee.” Galvin v. Occupational Safety & Health Adm in., 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 em ployment). Before filing suit in federal court, a claim ant m ust first present her claim to the appropriate federal 4 agency. 28 U.S.C. § 2675(a). Adm inistrative exhaustion is a jurisdictional prerequisite to filing a lawsuit under the FTCA. Gregory v. Mitchell, 634 F.2d 199, 20 3-0 4 (5th Cir. 1981); see also Baker v. McHugh, 672 F. App’x 357, 362 (5th Cir. 20 16). Plaintiff does not allege in his com plaint 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’ m otion to dism iss, of adm inistrative exhaustion. Plaintiff also fails to allege how his injuries resulted from the negligence or wrongful acts of any federal em ployee. Therefore, to the extent plaintiff alleges a tort claim against the United States, this claim m ust be dism issed for lack of subject-m atter jurisdiction and for failure to state a claim . B. Am e rican s w ith D is abilitie s Act For the reasons discussed in the Court’s order dated December 5, 20 17, 9 plaintiff has also failed to state a claim under the ADA. Title II of the ADA prohibits disability discrim ination in the provision of public services. See Fram e v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 20 11) (en banc). Specifically, 42 U.S.C. § 12132 provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation 9 R. Doc. 13. 5 in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrim ination by any such entity.” Plaintiff does not allege that the United States treated him differently than others because of his disability. While he does allege that the 911 dispatcher negligently handled the call, he does not assert that this negligent treatm ent was based on his disability. Nor does he allege that the pothole rendered Moss Street inaccessible. Cf. Fram e, 657 F.3d at 227 (“When a city decides to build or alter a sidewalk and m akes that sidewalk inaccessible to individuals with disabilities without adequate justification, disabled individuals are denied the benefits of that city’s services, programs, or activities.”). Moreover, plaintiff fails to allege that the United States is responsible for either handling 911 calls or m aintaining Moss Street. Although the Court construes plaintiff’s com plaint broadly because of his pro se status, see Davison v. Huntington Ingalls, Inc., 712 F.3d 884, 885 (5th Cir. 20 13), the Court cannot discern from plaintiff’s pleadings any possible exam ples of disability-based discrim ination by the United States in violation of Title II of the ADA. Accordingly, plaintiff’s ADA claim against the United States m ust be dism issed for failure to state a claim . 6 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s m otion to dism iss. Plaintiff’s claim s against the United States are DISMISSED. New Orleans, Louisiana, this _16th _ day of J anuary, 20 18. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 7
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