Lopez v. U.S.

Decision Date20 December 2004
Docket NumberNo. CIV.A.2003-10916-RBC.<SMALL><SUP>1</SUP></SMALL>,CIV.A.2003-10916-RBC.<SMALL><SUP>1</SUP></SMALL>
Citation349 F.Supp.2d 179
PartiesAngelo LOPEZ, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Massachusetts

Joseph T. Desmond, Law Office of Dane Shulman, North Quincy, MA, for Angelo Lopez, Plaintiff.

Eugenia M. Carris, United States Attorney's Office, Boston, MA, for USA, United States Marshals Service, Defendants.

MEMORANDUM AND ORDER ON THE GOVERNMENT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(# 4)

COLLINGS, United States Magistrate Judge.

I. Introduction

The Plaintiff, Angelo Lopez ("Lopez"), brings this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., against the United States Marshals Service ("USMS") and the United States, ("the Government"),2 alleging that he received negligent medical treatment while an inmate in federal custody. Complaint, # 1. The Government has moved to dismiss this action under Fed.R.Civ.P. 12(b)(1) contending that this Court lacks subject matter jurisdiction because Lopez failed to present his claim to the appropriate federal agency within the required two-year statute of limitations. Memorandum in Support of the Government's Motion to Dismiss, # 5. Alternatively, the Government argues that Lopez' action must be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) because Lopez' complaint alleges negligence at the hands of independent contractors, for which the United States is not liable.3 Lopez has filed an opposition to the motion to dismiss, # 8. The motion was argued at a hearing before the Court on March 23, 2004. For the reasons discussed below, the Government's Motion to Dismiss is allowed in part and denied in part. The Court will permit limited discovery on certain jurisdictional questions as set forth below.

II. Factual Background

On September 7, 1998, Lopez injured his left ankle while playing basketball. # 1 ¶ 4. At the time, he was an inmate under federal custody at Lake County Jail in Painsville, Ohio. Id. According to the complaint, Lopez was initially treated for the injury two weeks later, # 1 ¶ 6, when he was taken to Lake East Hospital in Painsville, Ohio. There, his ankle was x-rayed and diagnosed to be broken. # 1 ¶¶ 6-7. Lopez was released from the hospital with no treatment for the break, and was returned to jail without crutches, cast or a brace. # 1 ¶ 8. Two weeks later, Lopez was again taken to Lake East Hospital, where another x-ray confirmed the break. # 1 ¶ 9. This time, he was fitted with a plastic brace and given painkillers. Id. Three weeks later, sometime in November, 1998, the cast was removed, # 1 ¶ 10, and Lopez continued on a regimen of physical therapy and pain medication. # 1 ¶ 11. By August, 1999, he had been moved to another facility, the Mahoney County Jail in Youngstown, Ohio. # 1 ¶ 12. There, he was told that his foot was not, in fact, broken. Id. By November, 1999, he had been transferred to LSCI Allenwood, where Lopez was told that he would need surgery because "the ankle appeared to be a clubfoot deformity with some degree of equinus, hindfoot and midfoot varus, and inversion deformity." # 1 ¶ 13. Lopez requested surgery, but no surgery was performed. # 1 ¶¶ 14-15. At some point following this diagnosis, Lopez requested his medical records and retained an attorney.4 Documents Submitted by Government on March 24, 2004, # 19. That attorney (the first of two), in a letter dated April 26, 2000, advised USMS in Cleveland, Ohio that he intended to represent Lopez in a negligence action. Letter from Jaime P. Serrat, # 19. Later, Lopez was moved again to FMC Devens. # 1 ¶ 15. There, in October 2000, he was again told that he would require surgery to correct the deformity in his ankle. # 1 ¶ 16. In January and April, 2001, Lopez was again advised that he required surgery, and that his concerns would be addressed "in the near future." # 1 ¶¶ 17-18. Surgery was performed in July 2002. # 1 ¶ 19. The surgery was ineffective and Lopez' condition — an ankle that is "inverted, seriously deformed, and cannot support his weight" persists to this day. # 1 ¶¶ 20-21.

The Plaintiff filed an administrative claim with USMS on June 19, 2002, pursuant to the provisions of the FTCA, 28 U.S.C. 2675 et seq., claiming negligence on the part of the United States. # 1 ¶¶ 2-3. That claim had been pending for more than six months when the Plaintiff filed the complaint in this suit on May 15, 2003 in accordance with 28 U.S.C. § 2401. # 1 ¶ 2. That administrative claim forms the basis for the current suit. The Court held a hearing on the matter on March 23, 2004. At the hearing, and through the parties' briefs, the Court learned that Lopez had filed an earlier administrative claim, in October 2000, also complaining of the injury that is the basis of this suit. Lopez argues in his brief that this earlier administrative claim is also viable, and the Government has argued that the October 2000 claim, though timely, fails as insufficient. For the reasons set forth below, the Court will allow in part and otherwise deny claims deriving from the June 2002 administrative claim. The Court will permit Lopez to conduct limited discovery into the jurisdictional sufficiency of the October 2000 administrative claim and will grant Lopez leave to amend his complaint provided that he adequately alleges subject matter jurisdiction as set forth more fully below.

III. The Jurisdictional Standard

"It is well settled in this circuit that the timely filing of an administrative claim pursuant to 28 U.S.C. § 2401(b) is a jurisdictional prerequisite to filing suit under the FTCA," Skwira v. United States, 344 F.3d 64, 71 (1st Cir.2003) (citations omitted), cert. denied, ___ U.S. ___, 124 S.Ct. 2836, 159 L.Ed.2d 267 (2004), and a failure to comply with the requirement "means that the district court lacks subject matter jurisdiction to entertain the suit and must dismiss it." Id. (citation omitted). In ruling on a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), "the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of plaintiff." Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996). However, "[i]n a situation where the parties dispute the predicate facts allegedly giving rise to the court's jurisdiction, the district court will often need to engage in some preliminary factfinding." Skwira, 344 F.3d at 71-72. In that case, a district court, without conversion to a motion for summary judgment, "may consider extrinsic materials and, to the extent it engages in jurisdictional factfinding, is free to test the truthfulness of the plaintiff's allegations." Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34, 37 (1st Cir.2000) (citation omitted). See also Skwira, 344 F.3d at 71-72 (noting that district court "enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction.") (quoting Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir.2001)). Accordingly, in order to establish its authority to hear case, "a district court may (1) consider evidence submitted by the parties, such as depositions and exhibits; (2) entertain arguments not raised by the parties' memoranda; and (3) resolve factual disputes, if necessary." Heinrich I, 44 F.Supp.2d at 415.

IV. Analysis

The FTCA, 28 U.S.C. §§ 1346, 2671-2680, waives the sovereign immunity of the United States and permits tort actions in federal court, provided that a tort claimant exhaust administrative remedies before filing suit in federal court. See Coska v. United States, 114 F.3d 319, 323 n. 8 (1st Cir.1997) (and cases cited). Failing to file an administrative claim with the appropriate federal agency within two years of a claim's accrual results in that claim being "`forever barred.'" 28 U.S.C. § 2401(b); see Skwira, 344 F.3d at 71. The FTCA further requires that the administrative claimant "first present[ ] the claim to the appropriate Federal agency...." 28 U.S.C. § 2675(a). A tort claim is deemed "presented" to a federal agency when a claimant gives notice to the Government of the nature of the claim and the damages requested. Santiago-Ramirez v. Sec. of Dept. of Defense, 984 F.2d 16, 19 (1st Cir.1993). A potential plaintiff has satisfied this notice requirement "if he or she provides a claim form [an executed Standard Form 95] or `other written notification' which includes (1) sufficient information for the agency to investigate the claims, and (2) the amount of damages sought." Santiago-Ramirez, 984 F.2d at 19 (and cases cited). The First Circuit "approaches the notice requirement leniently, `recognizing that individuals wishing to sue the government must comply with the details of the law, but also keeping in mind that the law was not intended to put up a barrier of technicalities to defeat their claims.'" Id. (quoting Lopez v. United States, 758 F.2d 806, 809-10 (1st Cir.1985)).

As noted, in this case Lopez has submitted his administrative claim twice: once, in October 2000, and once again in June 2002. Though Lopez has pled only the June 2002 claim as the jurisdictional basis for this suit, both parties have directed the Court's attention to the October 2000 claim, in briefing and in oral argument. The Government argues that both presentments fail, for different reasons, to satisfy the FTCA's jurisdictional requirements. The Court considers the Government's arguments and the sufficiency of each claim seriatim below.

A. The June 2002 Administrative Claim

The Government argues that this Court lacks subject matter jurisdiction because Lopez filed the June 2002 administrative claim late. The complaint states that Lopez filed his administrative claim with USMS on or about June 19, 2002, # 1 ¶ 2, and Lopez has attached a copy of that claim...

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