United States District Court, E.D. Missouri, Eastern Division
PRECIOUS SIMMS, by and through her next of kin, DEMETRIA VAUGHN and GLEN WALKER, Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Vaughn and Glen Walker bring this wrongful death action under
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
2671, et seq., and Missouri state law, alleging that
their mother, decedent Precious Simms, sustained injuries and
died as a result of negligence committed by several
defendants, including the United States of America, during a
laparoscopic procedure performed at the Betty Jean Kerr
People's Health Centers on April 13, 2017. Because Glen
Walker did not exhaust his administrative remedies under the
FTCA, I do not have subject matter jurisdiction over his
claim against the United States. As the statute of
limitations to bring an administrative claim has expired, I
will dismiss his claim against the United States with
Simms underwent a laparoscopic hysterectomy at the Betty J.
Kerr People's Health Center (BJK Health Center) on April
13, 2017. The BJK Health Center is a private entity eligible
for FTCA coverage under the Federally Supported Health
Centers Assistance Act. 42 U.S.C. § 233. The surgeon
performing the procedure, Dr. Laurel Fendrich, is employed by
the BJK Health Center and is deemed to be a federal employee
under the FTCA. Because plaintiffs claim that Dr. Fendrich
was acting within the scope of her employment, the United
States is the proper defendant to answer for Dr.
Fendrich's alleged negligent conduct. Id.
United States may be held liable for negligent or wrongful
acts by federal employees committed while acting within the
scope of their employment under the FTCA.”
Washington v. Drug Enforcement Admin., 183 F.3d 868,
873 (8th Cir. 1999). Specifically, federal district courts
are granted jurisdiction over civil damages actions against
the federal government
for 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 [her] 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 also 28 U.S.C.
§ 2674 (providing, in relevant part, that for tort
claims the “United States shall be liable . . . in the
same manner and to the same extent as a private individual
under like circumstances, ” except with respect to
pre-judgment interest and punitive damages). However, such an
action cannot be instituted “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[.]” 28 U.S.C. § 2675(a). This
statutory presentment requirement is a jurisdictional
prerequisite to the bringing of a civil action against the
United States under the FTCA. Bellecourt v. United
States, 994 F.2d 427, 430 (8th Cir. 1993). If the
presentment requirement is not satisfied, I must dismiss the
FTCA claim for lack of jurisdiction without addressing the
merits of the claim. Id. The jurisdictional
requirements for an FTCA claim are “construed
notice or presentment requirement of § 2675 is satisfied
if the claimant provides “sufficient information for
the agency to investigate the claims” and “the
amount of damages sought.” Farmers State Sav. Bank
v. Farmers Home Admin., a Div. of the U.S. Dep't of
Agric., 866 F.2d 276, 277 (8th Cir. 1989). “[T]wo
prerequisites for administrative investigation are the
identity of the claimants, and the nature of the
claims[.]” Id. (internal quotation marks and
citations omitted). If there are multiple claimants, each
claimant must submit his or her own administrative claim
before pursuing an FTCA lawsuit. See Lunsford v. United
States, 570 F.2d 221, 226 (8th Cir. 1977). And the claim
must be filed within two years after the claim accrues. 28
U.S.C. § 2401(b).
Glen Walker never submitted a claim to the Department of
Health and Human Services (HHS) identifying himself as a
claimant or identifying the amount of damages he sought as a
claimant. Although Demetria Vaughn submitted a claim on her
own behalf with the required information, her claim did not
notify the government that Walker was also a claimant; nor
did it state the amount of any claim Walker may have had.
See Manko v. United States, 830 F.2d 831, 840 (8th
Cir. 1987). Nor did it assert or establish her authority to
present a claim on behalf of Walker. See Mader v. United
States, 654 F.3d 794, 803 (8th Cir. 2011) (en banc).
Walker's assertion that Vaughn's administrative claim
served as adequate notice of his own claim “is
unacceptable.” Manko, 830 F.2d at 840.
the presentment requirement satisfied by counsel's
letters to the HHS identifying themselves as counsel for
Vaughn and Walker, or by the provision of Walker's
personal and contact information to the HHS in January 2018.
The correspondence between counsel and the HHS before Vaughn
filed her claim on November 20, 2017, addresses only the
intent to file administrative tort claims on behalf of Vaughn
and Walker. Because no amount of damages is requested in
these letters, they cannot be considered administrative
claims. Cf. Farmers State Sav. Bank, 866 F.2d at
276-77 (letters sufficient to assert administrative claim
where they identify claimant, the nature of the claim,
and sum certain amount claimant sought to recover).
HHS correspondence after Vaughn filed her claim references
only the “Administrative Tort Claim of Demetria
Vaughn.” And the provision of Walker's information
to the HHS in January 2018 was in response to an HHS inquiry
on Vaughn's claim regarding the decedent's survivors
- it was not to initiate or advance a separate claim for
Walker. Regardless, the information provided did not include
any sum certain in damages sought by Walker. In short, even
assuming that counsel's letters arguably identified
Walker as a claimant, none of the information provided to the
HHS identified any amount of damages sought by Walker as an
individual claimant. See Lunsford, 570 F.2d at 226
(referring favorably to “numerous cases [that] have
been dismissed for failure of the individual claimant to
state a sum certain in his administrative claim.”).
has not satisfied the jurisdictional requirements in order to
maintain an FTCA claim against the United States arising from
Precious Simms' death. And because the statute of
limitations for presenting an administrative claim in the
circumstances of this case expired two years after Simms'
death, that is, April 13, 2019, he is barred from bringing
such a claim now. See Motley v. United States, 295
F.3d 820, 822-23 (8th Cir. 2002). Nor does Walker argue that
equitable tolling applies in this case. See United States
v. Kwai Fun Wong, 135 S.Ct. 1625 (2015) (equitable
tolling applies to FTCA time limitations); Motley,
295 F.3d at 824 (party claiming benefit of exception to
statute of limitation bears burden of showing entitlement to
it). I will therefore dismiss Walker's FTCA claim with
prejudice. See Varner v. Peterson Farms, 371 F.3d
1011 (8th Cir. 2004) (dismissal with prejudice affirmed when
statute of limitations had run on claims).
IT IS HEREBY ORDERED that defendant United
States of America's Motion to Dismiss  is
GRANTED, and plaintiff Glen Walker's
claim against the United States of America is dismissed with
prejudice. Walker's state-law claims against defendants
Stefan Eichhorn, M.D., Anesthesia Partners Ltd., and SSM
Health Care St. Louis remain pending.
IS FURTHER ORDERED that defendant United States of
America shall answer or otherwise respond to plaintiff
Demetria Vaughn's ...