Opinion
7:22-CV-138-M-BM
06-07-2023
MICHAEL GREGG O'CONNELL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion by defendant, the United States of America (“defendant”), to dismiss [DE-14] (“motion to dismiss”) the complaint [DE-8] of pro se plaintiff Michael Gregg O'Connell (“plaintiff”). Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. [DE-14] at 1. Defendant filed a memorandum in support of the motion to dismiss. [DE-15]. Plaintiff opposes the motion.Defendant filed a reply to plaintiff's response to the motion to dismiss. [DE-19].
On December 22, 2022, the Deputy Clerk of Court issued a Rule 12 letter [DE-16] to plaintiff, advising plaintiff that he must file his material in opposition to defendant's motion to dismiss with the court on or before January 14, 2023. [DE-16]. On January 17, 2023, plaintiff returned the Rule 12 letter, having handwritten across the bottom, “I complied with this step, prior to the Torts claim in question.” [DE-17] at 1. That same day, plaintiff also filed a form titled “Claim for Damage, Injury or Death - Standard Form 95 (REV 2/2007)” (“FTcA form”), dated August 12, 2022, addressed to “Dept. of the Navy - Office of Judge Advocate General - Admirality [sic] & Claims Division - Torts Claims Unit.” [DE-18] at 1.
The time for filing responsive briefs has expired and the pending motion is ripe for adjudication. The motion was referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned RECOMMENDS that the court GRANT defendant's motion to dismiss [DE-14] and DISMISS plaintiff's complaint [DE-8] WITHOUT PREJUDICE, as provided below.
I. BACKGROUND
On October 3, 2022, plaintiff filed a complaint against the United States alleging a cause of action under the Camp Lejeune Justice Act of 2022 (“CLJA”), Pub. L. No. 117-18, § 804, 136 Stat. 1802 (2022). Compl. [DE-8]. Plaintiff's complaint utilizes a pro se plaintiff complaint form. See generally id. As the basis of this court's jurisdiction, plaintiff provides “FEDERAL LAW -CAMP LEJEUNE JUSTICE ACT.” Id. at 2. As the “acts complained of,” plaintiff claims “TOXIC WATER that ruined my health!” Id. Plaintiff provides that the relief sought is “Monotary [sic] damages due to nervous system disorders - disorders of my eye's [sic]/vision -contracting NHL - Non Hodgyns [sic] lymphoma - and infertility - as well as chronic upper & lower respirtory [sic] infections.” Id. at 3.
Plaintiff filed a proposed complaint [DE-5] on September 12, 2022, but the court did not docket plaintiff's complaint until it approved plaintiff's in forma pauperis application [DE-7] on October 3, 2022.
All citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
Throughout his complaint (Compl. [DE-8]) and certain other filings (see [DE-18]), plaintiff uses a random combination of handwritten capital and non-capital letters. The undersigned has attempted to reflect plaintiff's use of all caps, but otherwise has transliterated plaintiff's statements into sentence case for clarity.
As the “BASIS OF CLAIM” in the FTCA form [DE-18] that plaintiff filed in response to defendant's motion to dismiss, plaintiff provides “stationed at Camp Lejeune, ingested toxic water, health suffered in many ways some life threating [sic]!” [DE-18]. For “THE NATURE AND EXTENT OF EACH INJURY” on the FTCA form, plaintiff provides “[d]isorders of the EYES (glaucoma, cataracts, night blindness, color blindness, disorders of NERVOUS, endocrine, reprodutive [sic] systems, Non Hoykins [sic] lymphoma - head & neck cancer, 1 of each.” Id.
II. LEGAL STANDARDS
A. Standard of Review under Rule 12(b)(1)
Rule 12(b)(1) provides for dismissal of an action if the court lacks subject matter jurisdiction over it. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of showing federal jurisdiction on a Rule 12(b)(1) motion. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991); Bio-Medical Applications of N.C, Inc. v. Elec. Data Sys. Corp., 412 F.Supp.2d 549, 551 (E.D. N.C. 2006). “The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case.” Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012) (citing Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999)).
The court's standard for review of a motion filed pursuant to Rule 12(b)(1) depends on the nature of the movant's challenge to subject matter jurisdiction. “A defendant can challenge subject matter jurisdiction under Rule 12(b)(1) in one of two ways; he may either assert (1) a facial challenge that the allegations pled in the complaint are not to sufficient to establish subject matter jurisdiction; or (2) a factual challenge that the allegations establishing jurisdiction are not true.” Chong Su Yi v. Soc. Sec. Admin., 80 F.Supp.3d 666, 669 (D. Md. 2015) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). If the argument claims that the complaint fails to allege sufficient facts conferring subject matter jurisdiction, the court must assume all facts alleged in the complaint to be true and “and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kimble v. Rajpal, 566 Fed.Appx. 261, 262 (4th Cir. 2014) (noting that where defendant raises a “facial challenge” to the jurisdictional allegations, “the court must evaluate the complaint in the same manner utilized in assessing a motion to dismiss for failure to state a claim- that is, viewing the well-pleaded facts in the complaint as true”). The court may consider any documents attached to the complaint in its analysis. Brooks-McCollum v. Aspen Prop. Mgmt. Co., 551 Fed.Appx. 677, 679 n.* (4th Cir. Jan. 8, 2014), cert. denied, 573 U.S. 948, 134 S.Ct. 2886 (2014); see also Fed.R.Civ.P. 10(c). Alternatively, if the movant contests the accuracy of plaintiff's jurisdictional allegations, the court must treat the allegations of the complaint as mere evidence and may consider matters beyond the pleadings without converting the motion to one for summary judgment. Richmond, 945 F.2d at 768; see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (“[T]he court may consider the evidence beyond the scope of the pleadings to resolve factual disputes concerning [subject matter] jurisdiction.”). Additionally, under Rule 12 of the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
Here, plaintiff does not mention the administrative exhaustion requirement at all in his complaint. See generally Compl. [DE-8]. However, he does appear to allege that he has satisfied this requirement in the documents he submitted in opposition to defendant's motion to dismiss. See [DE-17] (noting that “I complied with this step, prior to the Torts claim in question!”); [DE-18] (consisting of what appears to be a completed FTCA form alleging injuries caused by toxic water at Camp Lejeune). Accordingly, the court construes defendant's motion to dismiss as contesting the accuracy of the jurisdictional allegations, namely plaintiff's contention that he did comply with the administrative exhaustion requirements of the CLJA. The undersigned, therefore, considers the additional documentation submitted by plaintiff in opposition to defendant's motion to dismiss.
B. Camp Lejeune Justice Act of 2022
Congress enacted the CLJA to allow plaintiffs to sue “for harm that was caused by exposure to the water at Camp Lejeune” suffered by individuals “who resided, worked, or [were] otherwise exposed” for at least 30 days between August 1, 1953, and December 31, 1987. Pub. L. No. 117168, § 804(b).
Claims under the CLJA require a plaintiff to exhaust his administrative remedies before filing suit. See Pub. L. No. 117-168, § 804(h); 28 U.S.C. § 2675. Before bringing a CLJA action, Section 804(h) requires compliance with 28 U.S.C. § 2675, the Federal Tort Claims Act, which states:
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.28 U.S.C. § 2675(a) (emphasis added).
Specifically, under the CLJA, a plaintiff wishing to sue for harm caused by exposure to the water at Camp Lejeune must have an administrative claim for relief denied by the Department of the Navy (the “Navy”) before suing the government. See Pub. L. No. 117-168, § 804(h); Fancher v. United States, No. 5:22-CV-315, 2022 WL 17842896, at *6 (E.D. N.C. Dec. 20, 2022); Pearce v. United States, No. 7:23-CV-3-D, 2023 WL 2290779, at *1 (E.D. N.C. Feb. 28, 2023) (“[A plaintiff] must first comply with the Camp Lejeune Justice Act's exhaustion provisions before filing suit under the Act, and ‘[t]he administrative exhaustion requirement cannot be waived.'” (quoting Fancher 2022 WL 17842896, at *7) (alteration in original)); Pugh v. United States, No. 7:22-CV-124-BO-BM, 2023 WL 1081262, at *4 (E.D. N.C. Jan. 27, 2023) (“Before a plaintiff may bring an action under the CLJA, he or she must first comply with the Federal Tort Claims Act (FTCA) by presenting the claim to the appropriate federal agency, here the Navy.” (citing CLJA § 804(h); 28 U.S.C. § 2675(a))). “The administrative claim provides the Federal agency with notice sufficient to investigate the claim, assess its liability under the law, and decide whether to settle without the need for a federal lawsuit.” Fancher, 2022 WL 17842896, at *8.
The Navy has established a process for presentment of Camp Lejeune Justice Act claims, including a specific form for presenting the claim. See Camp Lejeune Claims - How to File, U.S. Navy Judge Advocate Gen.'s Corps, https://www.jag.navy.mil/legal-services/code-15/camp-lejeune (last visited June 5, 2023).
III. DISCUSSION
Plaintiff has not demonstrated that he presented his administrative claim to the Navy and received an actual or constructive denial before filing his claim. In the motion to dismiss, defendant argues that the court should dismiss plaintiff's complaint for “fail[ing] to meet the administrative presentment requirement of CLJA § 804(h).” [DE-15] at 12.
Plaintiff's response to the Rule 12 letter states in a conclusory manner that he “complied with this step, prior to the Torts claim in question,” ([DE-17] at 1), but his generic FTCA form,provides no indication that the Navy received this FTCA form, let alone, denied it. See generally Compl. [DE-8]. The undersigned need not consider whether submission of a claim on a generic FTCA form was sufficient to initiate the administrative claims process under the CLJA, because plaintiff's claim is premature. Plaintiff did not allege that the Navy denied his claim, and six months could not have passed between August 12, 2022, the earliest date plaintiff could have filed his FTCA form with the same date, and October 3, 2022, when plaintiff filed his complaint with this court. Even if plaintiff had alleged that he filed the FTCA form with the Navy on August 12, 2022, which is more than six months before the date of the instant Memorandum and Recommendation, this intervening period does not cure the original defect of the complaint's premature filing. See Fishman v. United States, No. 5:08-CT-3115-BO, 2011 WL 2618897, at *2 (E.D. N.C. July 1, 2011), aff'd, 473 Fed.Appx. 327 (4th Cir. 2012) (“A [FTCA] case that is filed before the denial has issued or six month period has elapsed is not rescued simply because time has passed or a denial is issued at a later time (citing Plyler v. United States, 900 F.2d 41, 42 (4th Cir.1990))). In sum, plaintiff has failed to demonstrate that he has exhausted his administrative remedy as required by Section 804 of the CLJA.
The Navy has established a specific form for presenting claims, which, for the avoidance of doubt, is separate and distinct from the generic FTCA form. See Form CLAIM FOR INJURY OR DEATH, available at https://www.jag.navy.mil/documents/5776/CLJAClaimsForm.pdf (last visited June 5, 2023). The Navy provides directions and procedures for submitting a claim using the form. See CAMP LEJEUNE JUSTICE ACT CLAIMS PROCEDURES, available at https://www.jag navy mil/documents/5777/CLJADirectionsProcedures.pdf (last visited June 5, 2023).
Accordingly, “the court lacks subject-matter jurisdiction in this case and [plaintiff's] claim [ ] must be dismissed without prejudice.” Pearce, 2023 WL 2290779, at *1 (second alteration in original) (quoting Brewer v. United States, No. 7:22-CV-00150, 2023 WL 1999853, at *2 (E.D. N.C. Feb. 14, 2023)).
IV. CONCLUSION
For the reasons stated above, the undersigned RECOMMENDS that the court GRANT defendant's motion to dismiss [DE-14] and DISMISS plaintiff's complaint [DE-8] WITHOUT PREJUDICE.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until June 21, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
SO ORDERED.