Civil Action No. 1:19-cv-03201-DDD-SKC
RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS [#21]
Plaintiff Michela Morellato Blosfield is a pro se litigant. Her operative Complaint [#15] alleges a negligence claim pursuant to the Federal Tort Claims Act (FTCA). Specifically, the Complaint alleges that on September 15, 2017, a "uniformed service member of the United States of America based at the Pentagon in Washington, DC, was negligent in revealing my name in an unrestricted email pertaining to an ongoing investigation involving inappropriate sexual misconduct by a senior military official . . .." [#15, p.3.] It further alleges this conduct breached a duty of care and "caused harm to my good name, reputation, and honor without sufficient notice or an opportunity to contest its inclusion, inflicting emotional distress upon finding protected, confidential disclosures leaked and published on social media, and causing tangible, compensable losses and damages in the form of retaliation and physical disbarment from installations containing my husbands (sic) place of employment and childrens' (sic) school." [Id.] The Complaint requests "monetary relief of 5 million dollars as well as an apology from the US Army . . . and a retraction of the specious espionage charge." [Id., p.4.]
This is the fifth iteration of the Complaint. Plaintiff filed her original complaint on November 11, 2019. She was ordered to cure deficiencies in that complaint [#5] and filed an amended complaint on December 4, 2019 [#7]. She was again ordered to cure deficiencies [#8] and she filed a second amended complaint on December 6, 2019 [#9]. She filed a third amended complaint on January 17, 2020 [#13] after again being ordered [#11] to do so. The Court again ordered Plaintiff to file an amended complaint [#14], which she filed on February 25, 2020 [#15]. The latter is the operative complaint. The Order immediately preceding the filing of the operative complaint advised Plaintiff of the administrative exhaustion requirements under 28 U.S.C. §§ 2675(a) and 2401(b), and directed her to "allege sufficient facts or submit documentation to show that she complied with the FTCA's pre-suit administrative requirements. . .." [#14, pp.3-4.]
Defendant filed a Motion to Dismiss [#21] seeking dismissal of the Complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). District Judge Domenico referred the Motion to the magistrate judge. Having reviewed the Motion, all related briefing, and applicable law, the Court finds no hearing is necessary. For the reasons stated below, the Court recommends the Motion be GRANTED.
The Court accepts the well-pleaded facts as true and views the allegations in the light most favorable to the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). Moreover, because Ms. Blosfield proceeds pro se, her pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. But the Court cannot act as a pro se litigant's advocate. Id. The Court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting matters that were not pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se litigants must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Defendant seeks dismissal of the Compliant under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Rule 12(b)(1) is the appropriate rule to challenge subject matter jurisdiction. Satterfield v. Malloy, 700 F.3d 1231, 1234 (10th Cir. 2012). Federal courts have limited jurisdiction. As such, there must be a specific legal basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)).
The determination of a court's subject matter jurisdiction is a question of law. Madsen v. U.S. ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
Under Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The Twombly-Iqbal pleading standard requires that courts take a two-prong approach to evaluating the sufficiency of a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007). The first prong requires the court to identify which allegations "are not entitled to the assumption of truth" because, for example, they state legal conclusions or are mere "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations "and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. "Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). In other words, the court strips the complaint bare of the deficient allegations and determines whether the remaining allegations plausibly state a claim for relief.
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. If the allegations "are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'" Robbins v. Oklahoma, 519 F.3d 1242, (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). The standard is a liberal one, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely." Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
1. Subject Matter Jurisdiction
Defendant argues the Court lacks subject matter jurisdiction for five reasons: (1) Plaintiff failed to exhaust U.S. Army administrative procedures prior to filing suit under the FTCA; (2) insofar as Plaintiff belatedly filed an administrative claim more than two years after it accrued, her claim is now time-barred; (3) the Court lacks subject matter jurisdiction to adjudicate FTCA claims related to alleged injuries, like Plaintiff's, "arising abroad;" (4) the Court lacks subject matter jurisdiction to adjudicate FTCA claims, like Plaintiff's, premised on the "exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government;" and, (5) Plaintiff fails to state a plausible claim for negligence supporting her FTCA action as required by 28 U.S.C. § 1346(b)(1). [#21, pp.1-2.]
It is well established the United States cannot be sued unless it has consented to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980); see also United States v. $30,006.25 in United States Currency, 236 F.3d 610, 613 (10th Cir. 2000) (a "waiver of sovereign immunity cannot be implied but must be unequivocally expressed"). Pertinent here, the FTCA allows claims against the United States for money damages
for injury . . . or personal injury . . . 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, 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)(1); see FDIC v. Meyer, 510 U.S. 471, 476 (1994).
Both parties attached documents to their pleadings in support of the jurisdictional arguments. The Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt, 46 F.3d at 1003.
The FTCA's exhaustion requirement bars "claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113 (1993). Codified at 28 U.S.C. § 2675, the exhaustion requirement provides, in relevant part:
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.Id. The Tenth Circuit has interpreted this to mean a plaintiff can establish exhaustion by either "(1) hav[ing] their administrative claims finally denied by the relevant federal agency; or (2) if the agency fails to act on their administrative claims within six months of presentment, they may thereafter deem the claims (constructively) denied." Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015) (parenthetical in original).
Proper exhaustion requires a plaintiff to identify a "sum certain" requested in damages, and include a written statement sufficiently describing the injury to enable the agency to begin an investigation. Estate of Trentadue ex rel. v. United States, 397 F.3d 840, 852 (10th Cir. 2005) (citing 28 U.S.C. § 2675); 28 C.F.R. § 14.2(a) ("a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain . . ."). The Court must strictly construe these requirements. See Bradley v. U.S. by Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991) ("Because the FTCA constitutes a waiver of the government's sovereign immunity, the notice requirements established by the FTCA must be strictly construed.").
Defendant argues Plaintiff failed to exhaust her administrative remedies because she did not file a Standard Form 95 and identify the certain sum of $5,000,000 until March 11, 2020 (120 days after she filed this lawsuit), and the U.S. Army has yet to issue a decision on her claim, at least as of the time of full briefing on the Motion. In response, Plaintiff argues she properly "exhausted U.S. Army administrative procedures through Inspector General complaints, a letter to the Chief of Staff of the Army, and Freedom of Information Act request (sic) through Senator Michael Bennet's office." With this argument, Plaintiff appears to concede she did not submit an executed Standard Form 95 prior to filing this lawsuit. The Court construes Plaintiff to argue that her various letters and FOIA request(s) constitute the, "or other written notification" of an incident, mentioned in the Code of Federal Regulations as a proper method of presenting a claim for exhaustion. Id.
The problem for Plaintiff, however, is even were the Court to assume these letters were proper "other written notification," there is no evidence she identified a "sum certain"—specifically, the $5,000,000 she claims as damages in this lawsuit—in any of that correspondence. Nor does Plaintiff argue she did so. To be sure, Plaintiff attached 221 pages of exhibits to her Response. [#25-1.] The Court reviewed these documents and utilized the Adobe text-recognition feature to search the 221 pages for references to the sum certain of $5,000,000, to include variations on the figure (such as "$5M;" "5M;" "five million;" "5 million;" etc.). Based on the Court's review, there is no evidence any pre-lawsuit correspondence Plaintiff refers to included the required sum certain.
The Court understands the text-recognition feature has its limitations with handwritten text and with documents of a non-routine format. Notwithstanding those limitations, the Court found the exercise useful to its consideration of this issue. --------
It is Plaintiff's burden to establish the Court's subject matter jurisdiction. Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). Without evidence she timely requested a sum certain prior to filing this lawsuit, Plaintiff has failed to meet her burden to establish she properly exhausted her administrative remedies under the FTCA. Kendall v. Watkins, 998 F.2d 848, 852-53 (10th Cir. 1993) (plaintiff failed to comply with FTCA exhaustion requirements when she sent series of letters to agency's secretary detailing alleged incidents of sexual harassment and sex discrimination at the agency, but failing to request a sum certain in her letters); see also Bradley, 951 F.2d at 271 (holding that failure to present claim to agency for a sum certain deprives court of jurisdiction over FTCA claim).
For these reasons, the Court recommends finding it lacks subject matter jurisdiction over Plaintiff's FTCA claim. See McNeil, 508 U.S. at 113 (holding "FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies"); Pipkin v. USPS, 951 F.2d 272, 273 (10th Cir. 1991) (holding exhaustion of administrative claims is jurisdictional prerequisite to asserting claims under FTCA); cf. Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) ("[A]s a general rule, a premature 'complaint cannot be cured through amendment, but instead, plaintiff must file a new suit.' . . . Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system. . . . 'Congress intended to require complete exhaustion ... before invocation of the judicial process.'") (internal citations omitted).
Because this Court's recommendation rests on its conclusion that subject matter jurisdiction is lacking, the Court does not reach the other bases for dismissal argued by Defendant.
For the foregoing reasons, the Court respectfully recommends the Motion to Dismiss be GRANTED. DATED: March 26, 2021
BY THE COURT:
S. Kato Crews
U.S. Magistrate Judge NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148- 53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412- 13 (10th Cir. 1996).