United States District Court, W.D. Oklahoma
DENTON W. GAGE, Plaintiff,
UNITED STATES DEP'T OF VETERAN'S AFFAIRS Respondent.
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
a federal prisoner appearing pro se, brings this action
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346, 2671 et seq., against four
Oklahoma City Veterans Affairs Medical Center (OCVAMC)
employees, [Doc. No. 1]. United States District Judge David
L. Russell referred the matter for proposed findings and
recommendations consistent with 28 U.S.C. § 636(b)(1)(B)
and (C). For the reasons set forth below, Plaintiff's
action should be summarily dismissed for failure to exhaust
administrative remedies pursuant to 28 U.S.C. § 2675(a).
Plaintiff's Claims and Background
sues four OCVAMC employees, in their official capacities,
claiming that their medical malpractice and negligence
resulted in the decline of his mental health and contributed
to his incarceration. See Compl., passim.
This Court ordered Plaintiff to “inform the Court as to
whether he has exhausted his FTCA claims with the VA, ”
and if not, to “show cause why his action should not be
dismissed.” [Doc. No. 16]. Plaintiff then filed a
“Notice of Exhaustion of Administrative Remedy, ”
referring to his VA medical records as evidence of
administrative exhaustion. [Doc. No. 20]. Plaintiff does not
allege that he filed a complaint with the relevant federal
agency. See Id. at 2.
Standard for Dismissal
Plaintiff has sued government officials, the Court has a duty
to screen the Complaint and dismiss any portion that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant immune from such relief. See 28 U.S.C.
§ 1915A(a), (b). Further, this Court is under a
continuing obligation to examine its jurisdiction. See
Franklin Sav. Corp., In re, 385 F.3d 1279, 1286 (10th
FTCA provides the exclusive avenue to bring tort claims
against OCVAMC officials. See Ingram v. Faruque, 728
F.3d 1239, 1247-48 (10th Cir. 2013) (holding the “VA
Immunity Statute” is the exclusive remedy for claims
against VA employees and thus claims involving medical care
or treatment must be made through the FTCA). And,
“[t]he administrative- exhaustion requirement
applicable to FTCA claims ‘bars claimants from bringing
suit in federal court until they have exhausted their
administrative remedies.'” Barnes v. United
States, 776 F.3d 1134, 1139 (10th Cir. 2015)
(quoting McNeil v. United States, 508 U.S. 106, 113
[a]n action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified
or registered mail. The failure of an agency to make final
disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this
28 U.S.C. § 2675(a).
“to meet the threshold requirement of administrative
exhaustion, plaintiffs must either (1) have their
administrative claims finally denied by the relevant federal
agency; or (2) if the agency fails to act on their
administrative claims within six months of presentment, they
may thereafter deem the claims (constructively)
denied.” Barnes, 776 F.3d at 1139. “This
exhaustion requirement is ‘jurisdictional and cannot be
waived.'” Lopez v. United States, 823 F.3d
970, 976 (10th Cir. 2016) (citation omitted).
noted above, the Court instructed Plaintiff to either provide
evidence that he exhausted his tort claims with the relevant
federal agency or to show cause why the Court should not
dismiss his action for failure to exhaust. Plaintiff's
response did not provide any evidence that he had made any
claim, let alone received a final disposition. See
[Doc. No. 20]. Accordingly, the Court finds it lacks
jurisdiction over Plaintiff's FTCA claims and
Plaintiff's action should be dismissed without prejudice.
See Lopez, 823 F.3d at 976 (affirming the district
court's dismissal of plaintiff's medical claims
against VA employees for failure to properly exhaust under
the FTCA); Webb v. Smith, 632 Fed.Appx. 957, 960
(10th Cir. 2015) (holding the district court properly
dismissed plaintiff's FTCA claims, sua sponte, because
“his failure to exhaust administrative remedies . . .
prevent[ed] subject-matter jurisdiction in district
court”); see also Wilson v. United States, No.
CIV-17-528-R, 2018 WL 794711, at *2 (W.D. Okla. Feb. 8, 2018)
(unpublished district court order) (dismissing
plaintiff's FTCA action against OCVAMC employees for
failure to exhaust his administrative remedies).
reasons set forth above, it is recommended that
Plaintiff's FTCA action, [Doc. No. 1], be dismissed