United States District Court, D. Maine
JOANN L. FOGG-INMAN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER ON MOTION TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
patient of a community health center brings a complaint
against the United States of America for malpractice. Because
she has not complied with the requirements of the Federal
Tort Claims Act by submitting an administrative claim and
receiving a denial or constructive denial before filing suit
in federal court, the Court dismisses her complaint without
prejudice to refile after she has done so.
December 28, 2018, Joann Fogg-Inman, acting pro se, filed a
complaint in the Penobscot County Superior Court for the
state of Maine against Penobscot Community Dental Center and
Dr. Jeffrey Fister, DMD, alleging that Dr. Fister committed
malpractice and discriminated against her when he performed
oral surgery on her on November 22, 2015. The United
States of America's Notice of Removal, Attach. 2,
Compl. (ECF No. 1); Aff. of Ashley E. Eiler,
Assistant United States Att'y, Regarding State Ct.
R., Attach. 1, Docket R. (ECF No. 8). On May 3,
2019, the Defendants removed the case from state to federal
court on the ground that Dr. Fister and the Penobscot
Community Health Center, Inc. are employees of the Public
Health Service and therefore are subject to the Federal Tort
Claims Act (FTCA). The United States of America's
Notice of Removal at 2. The United States explained its
view that once the United States Attorney General certifies
that a health center or employee named as a defendant in a
state court action was acting within the scope of his, her,
or its employment, the United States'
“deeming” action requires that the case be
removed from state to federal court and the proceeding must
be considered a tort action against the United States.
Id. at 1-3.
the United States removed the action to federal court, on May
6, 2019, the United States moved to substitute itself as the
sole defendant in the case and moved to dismiss the complaint
for failure to exhaust administrative remedies. The
United States of America's Mot. to Substitute (ECF
No. 6) (Def.'s Mot. to Substitute); The
United States of America's Mot. to Dismiss for Lack of
Subject Matter Jurisdiction (ECF No. 7) (Def.'s
Mot. to Dismiss). The United States served Ms.
Fogg-Inman with copies of the motions on May 6, 2019.
Def.'s Mot. to Substitute at 10; Def.'s
Mot. to Dismiss at 11.
16, 2019, the Court issued an order to show cause, directing
Ms. Fogg-Inman to respond to the United States' motions
within two weeks of her receipt of the order. Order to
Show Cause (ECF No. 10). In addition, the Court stated
that in her response, Ms. Fogg-Inman must show cause as to
why her complaint should not be dismissed for failure to
prosecute her civil action. Id. at 2. Ms.
Fogg-Inman's response was due by August 2, 2019.
Id. On July 29, 2019, Ms. Fogg-Inman filed a motion
to extend the time within which to respond to the Court
order. Mot. to Extend Time (ECF No. 11). On August
2, 2019, the United States objected in part. The United
States of America's Resp. to Pl.'s Mot. for
Extension (ECF No. 13). On August 9, 2019, the Court
granted Ms. Fogg-Inman a sixty-day extension to respond to
both the motion to dismiss and motion to substitute.
Order on Mot. for Extension of Time at 3 (ECF No.
October 8, 2019, Ms. Fogg-Inman filed a response to only the
motion to dismiss the complaint. Resp. to Mot. to Dismiss
for Lack of Subject Matter Jurisdiction (ECF No. 16).
Per the Court's warning in its August 9, 2019, order,
this was interpreted as a waiver of response to the motion to
substitute party, and the Court granted that motion on
October 10, 2019. Order on Mot. to Substitute Party
(ECF No. 17). On October 15, 2019, the United States replied
to Ms. Fogg-Inman's response, raising her failure to
exhaust her administrative remedies before filing a claim
under the FTCA. Def. United States of America's Reply
in Supp. of its Mot. to Dismiss for Lack of Subject Matter
Jurisdiction (ECF No. 18).
PROCESS FOR FILING CLAIM UNDER FTCA
FTCA is a law that allows some people (claimants) who claim
to have been harmed by representatives of the United States
to sue the United States in federal court for damages.
See 28 U.S.C. § 2671 et seq. Federal
courts may only hear cases if they have subject matter
jurisdiction. See, e.g., Owen v. Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)
(“It is a fundamental precept that federal courts are
courts of limited jurisdiction. The limits upon federal
jurisdiction, whether imposed by the Constitution or by
Congress, must be neither disregarded nor evaded”). The
FTCA grants federal courts subject matter jurisdiction over a
case if the person bringing the case has followed the
requirements of the FTCA.
FTCA requires that before a claimant can bring a claim in
federal court, the claimant first needs to present her claim
to the federal agency whose employee or employees allegedly
harmed him or her, a process referred to as
“administrative exhaustion.” 28 U.S.C. §
2675; see also McNeil v. United States, 508 U.S.
106, 113 (1993) (“The FTCA bars claimants from bringing
suit in federal court until they have exhausted their
administrative remedies”). The claimant needs to
present the claim to the agency within two years of the date
when the claimant first knew of the cause and existence of
her injury. 28 U.S.C. 2401(b) (“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 . . ..”);
Morales-Melecio v. United States (Dep't of Health and
Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018)
(“In general, a tort claim under the FTCA accrues when
a plaintiff is injured. . . . But, under the Supreme
Court's ‘discovery rule' exception for FTCA
claims, the statute of limitations clock does not begin to
run until the putative plaintiff knows of the factual basis
of both his injury and its cause”).
claimant does not fulfill these requirements before filing
her lawsuit, the lawsuit must be dismissed. However, the fact
that the lawsuit is dismissed does not necessarily mean that
the claimant cannot try again by following the requirements
of the FTCA and then filing another lawsuit in federal court
so long as the lawsuit is filed within the applicable statute
United States says that the United States Department of
Health and Human Services “has no record of [Ms.
Fogg-Inman] or anyone acting on her behalf ever having
submitted a claim involving [the Penobscot Community Health
Center] or Dr. Fister, ” and that therefore, Ms.
Fogg-Inman's complaint must be dismissed because the
Court does not have subject matter jurisdiction.
Def.'s Mot. to Dismiss at 2. Ms. Fogg-Inman has
not demonstrated in any of her filings with the Court that
she followed the requirements of the FTCA by filing a claim
with the Department of Health and Human Services. Therefore,
the United States is correct that Ms. Fogg-Inman's
complaint must be dismissed. But the Court dismisses her
Complaint without prejudice, which means that, so long as Ms.
Fogg-Inman completes the requirements of the FTCA in a timely
manner, she may refile her Complaint with this Court if she
chooses to do so.