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Bell v. Department of Navy Office of Judge Advocate General

United States District Court, E.D. Missouri, Eastern Division

December 23, 2019

RODERICK BELL, Plaintiff,
v.
DEPARTMENT OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion of plaintiff Roderick Bell for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion, the Court finds it should be granted. Additionally, for the reasons discussed below, the Court will direct plaintiff to show cause why his case should not be dismissed for failure to exhaust administrative remedies and for failure to state a claim.

         Legal Standard

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial plausibility 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. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation”).

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction” means that if the essence of an allegation is discernible, the district court should construe the plaintiff's complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8thCir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is a pro se litigant who has filed this civil action against the Department of the Navy, Office of the Judge Advocate General. He asserts subject matter jurisdiction under the Federal Tort Claims Act (FTCA) and the Caring for Camp Lejeune Families Act of 2012. (Docket No. 1 at 3). In his “Statement of Claim, ” plaintiff states the following: “As a member of the USMC, I was stationed at Camp Lejeune, North Carolina from May 5, 1969 to December 1969. I was exposed to and drank contaminated water (Industrial Solvents, benzene and other chemicals).” (Docket No. 1 at 5). Plaintiff does not allege any injuries. He seeks $3, 000, 000 in damages.

         Discussion

         Plaintiff brings this action pursuant to the FTCA, [1] alleging that while stationed at Camp Lejeune, North Carolina, while serving in the United States Marine Corps, he drank contaminated water. Having reviewed the complaint, and for the reasons discussed below, plaintiff will be directed to show cause in writing as to why this action should not be dismissed for failure to exhaust administrative remedies and for failure to state a claim.

         A. Exhaustion of Administrative Remedies

         It is well established that the United States is entitled to sovereign immunity, and cannot be sued without its consent. Honda v. Clark, 386 U.S. 484, 501 (1967). However, “[t]he FTCA waives federal sovereign immunity for injuries 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.” Newcombe v. United States, 933 F.3d 915, 917 (8th Cir. 2019). The FTCA acts as a limited waiver of sovereign immunity, which opens the door to state-law liability claims against the federal government for harm cause by a governmental employee. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019). Pursuant to statute:

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). Complete exhaustion of administrative remedies is required before the judicial process can be invoked. McNeil v. United States, 508 U.S. 106, 112 (1980). Exhaustion of administrative remedies is a jurisdictional prerequisite. Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996). That is, before bringing an action against the United States, a claimant must present his or her claim to the appropriate federal agency, and the agency must make a final decision. Bohac v. Walsh, 386 F.3d 859, 861 (8th Cir. 2004). Failure to comply with the exhaustion requirement will result in the dismissal of the suit for lack of subject-matter jurisdiction. See Mader v. United States, 654 F.3d 794, 808 (8th Cir. 2011) (concluding “that conformity with § 2675(a) is a jurisdictional term of the FTCA's limited waiver of sovereign immunity”). See also Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009) (stating that “[a] federal district court does not have jurisdiction over an FTCA claim unless it was first presented to the appropriate federal agency”).

         Here, plaintiff's brief “Statement of Claim” contains no allegations that he has exhausted his administrative remedies. Exhaustion is required to establish this Court's jurisdiction over plaintiff's FTCA claim. Thus, plaintiff will be ordered to show cause why this case should not be dismissed for failure to exhaust. Specifically, plaintiff must demonstrate that he has exhausted his administrative remedies with the Department of the Navy, including the date he filed his administrative claim; the date on which the administrative claim was denied; and whether that denial was a final disposition. Plaintiff's show cause response must be in writing and ...


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