Blue v. United States, Civ. No. B-78-210.

• Decision Date: 14 July 1983
• Docket Number: Civ. No. B-78-210.
• Citation: 567 F. Supp. 394
• Parties: Lonnie R. BLUE, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Connecticut

567 F. Supp. 394

Lonnie R. BLUE, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. B-78-210.

United States District Court, D. Connecticut.

July 14, 1983.

Keith Dunnigan, Kevin Murphy, Bai, Pollock & Dunnigan, Bridgeport, Conn., for plaintiffs.

Frank Santoro, Asst. U.S. Atty., Alan H. Nevas, U.S. Atty., D. Conn., New Haven, Conn., for defendant.

RULING ON MOTION TO DISMISS AS TO WALTER TYSON

DALY, Chief Judge.

Mr. Walter Tyson is one of 54 inmates injured in a fire at the Federal Correctional Institution (FCI) at Danbury the night of July 7, 1977. They brought a civil action for negligence against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. In the first phase of trial the government's liability was established. See Memorandum of Decision, May 11, 1981. In the second phase damages were determined for 11 randomly selected plaintiffs. See Memorandum of Decision, September 27, 1982. Mr. Tyson was among those 11 plaintiffs. After the trial on the second phase, but before the Court's decision had been rendered, the government moved to dismiss Mr. Tyson's claim pursuant to Rule 12(b)(1) of the Fed.R. of Civ. Pro., asserting that Tyson failed to present an administrative claim to the appropriate federal agency (in this case, the Bureau of Prisons) as required by 28 U.S.C. § 2675, and that such failure divests this Court of subject matter jurisdiction over this claim. In addition, the government asserts that Tyson's alleged failure to present a proper administrative claim within the two-year statute of limitations set forth in 28 U.S.C. § 2401, forever bars him from pursuing his claim.

It is well settled that the United States, as sovereign, is immune from suit without its consent and that such consent can be given only through waiver by Congress. See Wright, Miller and Cooper, Federal Practice and Procedure, Civil § 3654 (1976). The terms of that consent define the jurisdiction of the court and those terms have been construed narrowly as is "appropriate in the case of a waiver of sovereign immunity." United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941); see also Honda v. Clark, 386 U.S. 484, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); Battaglia v. U.S., 303 F.2d 683, 685 (2d Cir.1962).

The prerequisites to a court action under the FTCA are set out in 28 U.S.C. § 2675(a):

"An 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."

The Second Circuit has not yet issued a definitive decision as to whether a failure to exhaust the administrative procedures specified in § 2675(a) constitutes a jurisdictional bar to a court action. In Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d 97 (2d Cir.1981) the Court of Appeals alluded to the issue but left it unresolved.¹ Cf. House v. Mine Safety Appliances Co., 573 F.2d 609, 614 (9th Cir.1978); Lunsford v. United States, 570 F.2d 221 (8th Cir.1977); Molinar v. United States, 515 F.2d 246, 249 (5th Cir.1975); Executive Jet Aviation, Inc., v. United States, 507 F.2d 508 (6th Cir. 1974); Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir.1971) (holding that compliance with § 2675(a) is a jurisdictional prerequisite to an FTCA suit).

Assuming that the exhaustion requirement of § 2675(a) is a jurisdictional prerequisite, precisely what must be done to clear the jurisdictional hurdle is far from settled. Compare Adams v. United States, 615 F.2d 284 (5th Cir.) clarified, 622 F.2d 197 (5th Cir.1980); and Avery v. United States, 680 F.2d 608 (9th Cir.1982) with Swift v. United States, 614 F.2d 812 (1st Cir.1980). See also Douglas v. United States, 658 F.2d 445 (6th Cir.1981) which attempts to harmonize the Adams case with Swift.

The exhaustion procedures of the FTCA were added by Congress in 1966 for two reasons. Act of July 18, 1966, Pub.L. No. 89-506, 80 Stat. 306. The purpose was not to make recovery from the government more difficult but, instead, first to "ease court congestion and avoid unnecessary litigation, while making it possible for the government to expedite the fair settlement of tort claims asserted against the United States," and second, to provide "for more fair and equitable treatment of private individuals and claimants when they ... are involved in litigation with their government." S.Rep. No. 1327, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin. News, pp. 2515-2516.

Given these two congressional purposes, this Court agrees with the Fifth Circuit's reasoning in Adams v. United States, 615 F.2d 284 (5th Cir.), clarified, 622 F.2d 197 (5th Cir.1980), that the jurisdictional requirements of § 2675(a) are satisfied when the appropriate agency is given sufficient written notice of the circumstances of the underlying incident to enable it to investigate the claim and respond by settlement or defense. 615 F.2d at 289; 622 F.2d at 197.² In most instances, adequate notice must include both a statement of the factual details of the underlying incident and a demand for a sum certain in damages. See id.; cf. 28 U.S.C. § 2675(b) (providing that a federal court action may not be instituted for a sum in excess of the amount of the claim presented to the federal agency); 28 C.F.R. § 14.2(a) (defining, for purposes of the administrative settlement provision of the statute, 28 U.S.C. § 2672, when a claim is "presented" to an agency). Notice that includes both a statement of the facts and a demand for a specific amount of damages would inform the agency of the claim, give it sufficient information to investigate, and enable it to ascertain whether the claim could or should be settled.

In the case at bar, although Mr. Tyson never submitted a completed "Standard Form 95" (the government form usually sent to the appropriate agency regarding a tort claim against the U.S.) to the Bureau of Prisons,³ he did provide a sworn statement to a caseworker at F.C.I., Danbury on July 13, 1977, 6 days after the prison fire, in which he set forth the details of his injuries, the circumstances under which they occurred, and his assertion that these injuries were caused by "negligence" and "a complete lack of training in response to emergency situations on the part of the Correctional Officers concerned." (Exhibit A, attached to Tyson's Memorandum In Opposition To Defendant's Motion to Dismiss, Oct. 22, 1982.) Two separate federal investigations of the causes and consequences of the fire were conducted: The first, conducted by a Board of Inquiry appointed by the director of the Bureau of Prisons, sought to establish, among other things, the extent of injuries to Danbury's inmates. The Board's report identified Tyson as one of those injured in the fire. In addition, Tyson was one of the inmates interviewed by the government in the U.S. Comptroller General's investigation, the second of the two governmental inquiries into the fire. Furthermore, Tyson, along with the other injured inmates, was brought by prison authorities to Danbury Hospital for initial treatment, and thereafter released to the prison infirmary for further treatment of his injuries. The medical reports and itemized bills concerning his injuries and treatment originated with and remain in the possession of the government. The government thus had complete notice of the facts and circumstances of the prison fire and of the nature and extent of Tyson's injuries through Tyson's sworn statement (which included an allegation of negligence on the part of prison personnel), its own investigations, and its self-generated medical reports.⁴

As noted, supra, adequate notice for purposes of § 2675(a) ordinarily must include a demand for a specific amount of damages to enable the government to better evaluate the claim and to facilitate settlement. See, Adams, supra; 28 C.F.R. § 14.2(a). Tyson never supplied the Bureau of Prisons with a demand for a "sum certain" in damages.

The absence of a statement of the amount of the claim might, in the typical case, be sufficient reason to dismiss a complaint. See e.g., Allen v. U.S., 517 F.2d 1328 (6th Cir.1975); Caton v. U.S., 495 F.2d 635 (9th Cir.1974); Melo v. U.S., 505 F.2d 1026 (8th Cir.1974); Jordan v. U.S., 333 F.Supp. 987 (E.D.Pa.1971), aff'd without opinion, 474 F.2d 1340 (3rd Cir.1973); Cooper v. U.S., 498 F.Supp. 116 (W.D.N.Y. 1980); Hlavac v. U.S., 356 F.Supp. 1274 (N.D.Ill.1972). However, given the particular facts of this case, to grant the government's motion to dismiss on the sole ground that this plaintiff failed to submit a demand for a sum certain in damages would work a grave injustice, elevate form over substance, and subvert the beneficial purpose of § 2675(a) to provide "for more fair and equitable treatment of private individuals and claimants when they ... are involved in litigation with their government." S.Rep. No. 1327, 89th Cong. 2d Sess. (1966), U.S.Code Cong. & Admin.News, pp. 2515-16.

In this case, the plaintiff was at all relevant times a ward of the government; the fact, nature and extent of his injuries were well known to the government; the medical data regarding Tyson's injuries were peculiarly within the control of the government as Tyson, along with the other inmates and unlike more typical Federal Tort Claims Act litigants, was not...