Summary
dismissing claim pursuant to Rule 12(b) for failure to exhaust administrative remedies as required by 28 U.S.C. § 2675
Summary of this case from Desrosiers v. GanawayOpinion
Civil No. JFM-05-2358.
June 21, 2006
MEMORANDUM
Plaintiff has brought this action against Ronald Burke, Jr., a Veteran's Service Center manager, alleging that Burke improperly canceled a medical procedure for a "total joint replacement" that plaintiff was scheduled to receive. Defendant has filed a motion to substitute the United States as the defendant and to dismiss or for summary judgment. Plaintiff, who is appearing pro se, has opposed the motion and has filed a cross-motion for summary judgment. Defendant's motion will be treated as one to dismiss and, as such, will be granted. Plaintiff's motion for summary judgment will be denied
As the United States Attorney for the District of Maryland has certified, Burke obviously was acting within the scope of his employment at the time he committed the alleged wrong against plaintiff. Accordingly, under the Federal Tort Claims Act, the United States is the proper defendant. See 28 U.S.C. §§ 2679(d)(1), (d)(2), and (d)(4); Maron v. United States, 126 F.3d 317, 321-22 (4th Cir. 1997).
The United States asserts that Burke did not, in fact, cancel the medical procedure for which plaintiff was scheduled. I am not deciding the present motion on that ground, however, because resolution of it might require discovery.
Under the Federal Tort Claims Act, a plaintiff must first file an administrative claim with the appropriate federal agency. See 28 U.S.C. § 2675(a); see also 28 U.S.C. § 2401(b). Here, the record is undisputed that plaintiff filed no administrative claim with the Department of Veterans Affairs, the federal agency with which plaintiff should have filed an administrative claim. Accordingly, this action is barred.
A separate order effecting the rulings made in this memorandum is being entered herewith.