United States District Court, D. South Carolina, Greenville Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE
Collins (“Plaintiff”), proceeding pro
se, filed this action pursuant to the Federal Tort
Claims Act (“FTCA”). In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02, D.S.C., this
matter was referred to a magistrate judge for pretrial
handling. Before the court is the magistrate judge's
Report and Recommendation (“Report”),
recommending that the court grant the Administration of
Veterans Affairs' (“Defendant”) motion to
dismiss. (ECF No. 16). The parties were advised of their
right to file objections to the Report. (ECF No. 16-1). On
March 14, 2018, Plaintiff filed an objection. (ECF No. 20).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270- 71
(1976). The court is charged with making a de novo
determination of the portions of the Report to which specific
objection is made, and the court may accept, reject, or
modify, in whole or in part, the recommendation of the
magistrate judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
commenced this action on July 3, 2017, alleging that on April
22, 2017, a tree fell and damaged his truck. (ECF No. 1-1).
Liberally construed, he sought an award of damages from
Defendant for property damage, pursuant to the FTCA, in the
amount of $7, 580. Id. at 2. Under the FTCA,
“[a]n action shall not be instituted upon a claim
against the United States for money damages . . . 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). A cause of action under the FTCA must
be presented to the appropriate federal agency within two
years after the claim accrues, and the tort suit must be
begun within six months after the date of the final denial of
the claim by the agency to which it was presented.
See 28 U.S.C. § 2401(b). In order to
“properly present” an administrative claim, the
claimant must present the agency with (i) a completed
Standard Form 95 (or other written notification of the
incident) and (ii) “a claim for money damages in a sum
certain . . . .” Kokotis v. U.S. Postal
Service, 223 F.3d 275, 278 (4th Cir. 2000) (quoting 28
C.F.R. § 14.2(a)) (emphasis omitted). The burden of
establishing subject matter jurisdiction over an FTCA claim
lies with the plaintiff. See Welch v. United States,
409 F.3d 646, 650-51 (4th Cir. 2005).
Report, the magistrate judge recommends that the court grant
Defendant's motion to dismiss. (ECF No. 16). The
magistrate judge recommends dismissing the action to the
extent that Plaintiff was attempting to bring a FTCA claim
against any defendant other than the United States. (ECF No.
16 at 7) (citing Starling v. United States, 664
F.Supp.2d 558, 570 (D.S.C. 2009) (“The cause of action
created by the FTCA must be exclusively brought against the
United States government.”)); see also Bates v.
United States Gov't, 3 F.Supp.3d 1311, 1318 (S.D.
Ala. 2014) (“The FTCA . . . does not authorize suits
against federal agencies . . . .”). Moreover, the
magistrate judge finds that Plaintiff failed to demonstrate
that he submitted a Standard Form 95 to an appropriate agency
or that a federal agency has issued a final determination on
his claim. Id. at 7. Accordingly, the magistrate
judge concludes that Plaintiff failed to exhaust his
administrative remedies under the FTCA and failed to carry
his burden of proving that the court has subject matter
jurisdiction to review his claims. (ECF No. 16 at 9).
objection, Plaintiff fails to object to any specific or
dispositive portion of the magistrate judge's Report.
(ECF No. 20). Rather, he merely restates the allegation from
his complaint and provides additional assertions of fact.
(ECF No. 20 at 1). He argues that Tinsley Real Estate, the
alleged management company for the property and alleged agent
of the Administration of Veterans Affairs, was aware that the
tree was dangerous and took no action. Plaintiff also asserts
that he contacted the home owner's insurance company and
sent pictures, but was informed that it was not responsible
for the damages. Additionally, he attaches what appears to be
a statement from Foster Tree Service regarding the fallen
tree (ECF No. 20-1) and copies of emails containing photos
with the subject lines “Damages, ” and
“Damage car” (ECF No. 20-2). However, Plaintiff
fails to allege any specific error in the magistrate
judge's Report and does not allege or provide evidence
that he presented a Standard Form 95 to the appropriate
federal agency prior to commencing this action. Because the
court agrees with the magistrate judge's analysis, the
court adopts the Report and Plaintiff's general objection
is overruled. See Orpiano, 687 F.2d at 47.
thorough review of the Report and the record in this case,
the court adopts the magistrate judge's Report (ECF No.
16) and incorporates it herein. Accordingly, Defendant's
motion to dismiss (ECF No. 8) is GRANTED and
Plaintiff's action is DISMISSED without
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...