Opinion
Case No. 00-3258-JTM.
May 2, 2002
MEMORANDUM AND ORDER
This matter comes before the court on defendant's motion to dismiss or, alternatively, for summary judgment. Defendant argues that the court lacks subject matter jurisdiction over this proceeding because plaintiff allegedly failed to exhaust his administrative remedies under the Federal Tort Claims Act ("FTCA") prior to filing the present complaint. Defendant also contends that plaintiff is barred from filing a new suit because more than six months have passed since the denial of his administrative claim. Plaintiff, proceeding pro se, filed a "Motion for Review" on March 22, 2002. The "Motion" was followed by an affidavit providing supporting facts which plaintiff filed on March 25, 2002. The court will treat plaintiff's "Motion" and affidavit together as a response to defendant's dispositive motion. On April 8, 2002, defendant replied to plaintiff's response. Finally, on April 18, 2002, plaintiff filed a "Motion for Extension of Time to Answer Defendant's Reply." An answer to a reply constitutes a surreply, which the court will not consider. The local rules do not contemplate the filing of surreplies. D.Kan.R. 7.1. The courts in this district do not permit a surreply without leave of the court, Brown v. Security Benefit Group, 1997 WL 263737 (D.Kan., April 24, 1997) (No. 95-4127-SAC); Harnett v. Parris, 925 F. Supp. 1496, 1500 (D.Kan. 1996), and reserve leave for rare circumstances as "where a movant improperly raises new arguments in a reply," E.E.O.C. v. International Paper Co., 1992 WL 370850 (D.Kan. Oct. 28, 1992) (No. 91-2017-L). Plaintiff has not established such a "rare circumstance" as to allow the filing of a surreply. The court thus denies plaintiff's motion and defendant's dispositive motion is fully briefed and ripe for determination. For the reasons set forth below, the court grants defendant's motion to dismiss or, alternatively, for summary judgment.
I. Factual Background
Plaintiff is currently confined at the United States Peniteniary ("USP"), Lompoc, California. Plaintiff was designated to USP Leavenworth, Kansas from July 13, 1998 to March 28, 2001. He was not, however, physically located at USP Leavenworth throughout the duration of that period. From September 24, 1999 until December 13, 2000, plaintiff was released on federal writ and was confined at the Corrections Corporation of America ("CCA"), Leavenworth, Kansas. He was physically confined at USP Leavenworth from July 13, 1998 until September 24, 1999.
On July 14, 1998, plaintiff was assaulted by his cellmate, Scott Shofler. On July 11, 2000, the Bureau of Prisons North Central Regional Office received plaintiff's original Administrative Tort Claim, dated July 7, 2000. In his administrative tort claim and in response to defendant's motion, plaintiff alleges that he was negligently placed in the Special Housing Unit ("SHU") of USP Leavenworth with Scott Shofler who had been placed on single cell status for allegedly murdering another inmate. Plaintiff alleges that Shofler attacked him and caused permanent damage to his spine.
On July 13, 2000, plaintiff filed the present Federal Tort Claims Act complaint. On two subsequent occasions, plaintiff resubmitted copies of his original administrative claim. The North Central Regional Office received those claims on August 9, 2000 and October 2, 2000. By memorandum dated January 2, 2001, which was mailed to plaintiff by certified mail on January 5, 2001, the North Central Regional Office denied plaintiff's administrative claim. Plaintiff did not seek reconsideration of the administrative denial.
II. Discussion
Defendant raises a purely jurisdictional argument based on plaintiff's alleged failure to exhaust his administrative remedies. Plaintiff brings his claim pursuant to the FTCA, which provides jurisdiction in federal court over civil actions on claims against the United States. See, e.g., 28 U.S.C. § 1346(b), 2674 (1982). The FTCA waives, under certain conditions, "the United States' sovereign immunity in actions arising out of tortious conduct by governmental employees who are acting within the scope of their office or employment. . . ." Sargent v. United States, 897 F. Supp. 524, 525 (D.Kan. 1995). However, this broad waiver of sovereign immunity is limited by several exceptions, including 28 U.S.C. § 2675(a) which provides:
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.28 U.S.C. § 2675(a). The Supreme Court has held that § 2675(a) comprises two components.
First, a claimant must make a claim with the appropriate administrative body. Second, the claim must have been finally denied by the administrative body before a claim can be brought in federal court. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("Congress intended to require complete exhaustion . . . before invocation of the judicial process.").
Plaintiff filed his administrative tort claim on July 11, 2000. He thus complied with the first component of the exhaustion requirement. However, by filing suit in federal court two days later, he failed to comply with the second requirement of § 2675(a), i.e., that the claim be finally denied before commencement of the suit. Plaintiff's complaint was thus filed prematurely and is hereby dismissed for lack of subject matter jurisdiction. As a general rule in such cases, the premature filing cannot be cured by amendment of the complaint, but only by the filing of a new and independent suit. See Duplan v. Harper, 188 F.3d 1195, 1999 (10th Cir. 1999). Plaintiff, however, is barred from filing a new suit pursuant to 28 U.S.C. § 2401(b), which states:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.28 U.S.C. § 2401(b). The denial of plaintiff's administrative tort claim was mailed to plaintiff by certified mail on January 5, 2001. Plaintiff thus had until July 5, 2001 to remedy his earlier premature complaint by filing a new proceeding. Because he did not do so, plaintiff is now barred from bringing a new suit on the claims alleged in his administrative tort claim.
Plaintiff attempts to save his claim by suggesting that his incarceration at CCA Leavenworth prevented him from timely exhausting his administrative remedies. Having reviewed the facts, the court concludes that plaintiff's incarceration at CCA Leavenworth, even assuming his inability to pursue his claims, could not have ultimately precluded plaintiff from timely exhausting the administrative process or from timely refiling suit in this court. Plaintiff's administrative claim was denied on January 2, 2001 and mailed to plaintiff via certified mail on January 5, 2001. At that time, plaintiff was no longer incarcerated at CCA Leavenworth, as his incarceration there ended on December 13, 2000. Thus, any difficulties experienced by plaintiff at CCA Leavenworth are entirely irrelevant to whether plaintiff could have requested reconsideration or refiled his federal claim during the period from January 5, 2001 to July 5, 2001. Plaintiff has failed to convince the court that any attempts at compliance with the statutory requisites for an FTCA suit were futile.
IT IS THEREFORE ORDERED this ___ day of May, 2002 that defendant's motion to dismiss or, alternatively, for summary judgment (dkt. no. 29) is granted and plaintiff's motion for extension of time to answer defendant's reply (dkt. no. 35) is denied.