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Gage v. United States Dep't of Veterans Affairs

United States District Court, W.D. Oklahoma

February 12, 2019

DENTON W. GAGE, Plaintiff,
v.
UNITED STATES DEP'T OF VETERAN'S AFFAIRS Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         I. Plaintiff's Claims and Background

         Plaintiff 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.

         II. Standard for Dismissal

         Because 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 Cir. 2004).

         III. Analysis

         The 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 (1993)). Specifically,

[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 section.

28 U.S.C. § 2675(a).

         So, “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).

         As 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).

         RECOMMENDATION

         For the reasons set forth above, it is recommended that Plaintiff's FTCA action, [Doc. No. 1], be dismissed without ...


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