Opinion
Civil No. 02-1803 (JAG)
June 28, 2002
Ovidio R. Lopez-Bocanegra (Pro Se), Lares, PR. for plaintiff.
Camille L,. Velez-Rive, U.S. Attorney's Office, Torre Chardon, Hato Rey, PR for Defendants.
MEMORANDUM AND ORDER
This is a medical malpractice action instituted by plaintiffs Eliud Estremera-Velez, Neyda Perez and the conyugal partnership constituted by them ("plaintiffs"). The action was originally instituted in the Puerto Rico Court of First instance, Utuado Part against defendants Hospital General Castañer and David Rivera Jimenez ("defendants"). The United States then filed a motion to be substituted as the defendant and removed the action to this Court. (Docket # 2). Hospital General Castañer is a federally supported health center by the Public Health Service Bureau. By virtue of that designation, its employees are considered to be employees of The Public Health Service whose conduct is governed by § 233(a) of The Federally Supported Health Center Assistance Act of 1992 ("FSHCAA"). 42 U.S.C. § 233. Accordingly, any remedy sought against defendants for conduct within the scope of employment must be pursued in accordance with the terms of the Federal Tort Claims Act ("FTCA") . See 28 U.S.C. § 2671 et seq.; see 28 C.F.R. Parts 14 and 15; see 45 C.F.R. Part 35.
The FSHCAA extends FTCA's coverage to federally supported health centers and their employees for acts or omissions that occurred on or after January 3, 1997, or the date in which the health center is deemed eligible for FTCA coverage, whichever is later. 42 U.S.C. § 233.
Pending before the Court is the United States' motion to dismiss plaintiffs Complaint, claiming that this Court lacks subject matter jurisdiction inasmuch as plaintiffs' failed to file an administrative claim with the appropriate federal agency and failed to exhaust administrative remedies. (Docket # 4) . The motion stands unopposed. After reviewing the record, the Court GRANTS the United States' motion.
To the extent that plaintiffs seek relief for that alleged violation under the FTCA, their cause of action is barred for their failure to exhaust administrative remedies. Under the FTCA, the United States waives its sovereign immunity for "injury or loss of property . . . caused by the negligent act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346 (b). The FTCA provides the exclusive remedy to compensate for a federal employee's tortious acts committed within his or her scope of employment. See 28 U.S.C. § 2679 (a)
This waiver of immunity is subject to numerous conditions, including: (1) the presentation of a claim for a sum certain within two years of accrual of the cause of action to the appropriate federal agency and denial of the claim before bringing suit, see 28 U.S.C. § 2675 (a); and (2) the filing of a civil suit within six months of denial of the administrative claim, see 28 U.S.C. § 2401 (b) . "It is essential that the requirements of the Federal Tort Claims Act be strictly adhered [to] prior to asserting a claim in federal court." Alicea Baez v. United States, 976 F. Supp. 102, 104 (D.P.R. 1997) (citing Segarra Ocasio v. Banco Regional de Bayamon, 281 F. Supp. 1255, 1257 (D.P.R. 1984)) . To avoid dismissal, plaintiffs must show that they have complied with all conditions to effect a waiver of sovereign immunity. They have not done so.
The filing of an administrative claim under the FTCA is a prerequisite to suit, imposed by Congress, which the Court has no power to waive, even where a plaintiff believes that the filing of a claim would be futile. See, e. g., Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1463 (10th Cir. 1989); Cotto v. United States, 993 F.2d 274, 280 (1st Cir. 1993) . Exhaustion of plaintiffs' administrative remedies is a jurisdictional prerequisite to the prosecution of their FTCA claim. "It is well settled law that an action brought against the United States under the FTCA must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate federal agency." Attallah v. United States, 955 F.2d 776, 779 (1st Cir. 1992)
In the present case plaintiffs did not exhaust administrative remedies prior to filing suit. The record is devoid of any indication that they, to this day, have ever complied with the FTCA's administrative exhaustion requirements. Thus, plaintiffs' claims are barred by their failure to submit an administrative claim before the proper agency. Accordingly the Court GRANTS the United States motion to dismiss (Docket # 4) and dismisses without prejudice plaintiffs' Complaint so that they can file the appropriate administrative claim.
IT IS SO ORDERED.