United States District Court, D. South Carolina, Florence Division
Linda B. Nichols, Plaintiff,
United States of America, Defendant.
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court for consideration of
Plaintiff's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Kaymani D. West. See ECF Nos. 44 & 58. The
Magistrate Judge recommends granting Defendant's motion
to dismiss for lack of subject matter jurisdiction. R & R
at p. 9.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Plaintiff originally filed this personal injury action in
state magistrate court against two defendants-a dentist and a
dental center-seeking damages she allegedly sustained during
a dental procedure. See ECF No. 1. The United States
of America removed the action to this Court, and after
Plaintiff amended her complaint to name the United States as
an additional defendant, the United States filed a motion to
be substituted as the sole defendant pursuant to the Federal
Tort Claims Act (“FTCA”) and a motion to dismiss the
action pursuant to Fed.R.Civ.P. 12(b)(1) and (6).
See ECF Nos. 1, 18, 32, & 38. The Magistrate
Judge entered an R & R (1) granting the United
States' motion for substitution as
unopposed and (2) recommending that the Court grant
the United States' motion to dismiss for lack of subject
matter jurisdiction because Plaintiff failed to exhaust her
administrative remedies before filing this action.
See ECF No. 44. Plaintiff has now filed objections
to the R & R as well as a “Complaint for
Damages” dated May 4, 2018. See ECF Nos. 58
& 60. Defendant has not responded to
Court agrees with the Magistrate Judge that Plaintiff filed
this action prematurely. A plaintiff suing the United States
for a tort claim must file an administrative claim with the
appropriate federal agency within two years of its accrual
and must commence a civil action within six months after the
agency's final denial of the claim. See 28
U.S.C. § 2401(b). The FTCA specifies a plaintiff cannot
institute a personal injury action against the United States
unless she has first presented the claim to the appropriate
federal agency and the agency has finally denied the claim in
writing. See Id. § 2675(a); 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.”).
Plaintiff allegedly suffered her injuries during an
April 3, 2017 dental appointment, and she
immediately filed this action in state magistrate court the
next month, May 2017, without first filing
an administrative claim. Cf. Henderson v. United
States, 785 F.2d 121, 123 (4th Cir. 1986) (“The
FTCA clearly provides that, prior to bringing an action
against the United States, a claimant ‘shall have first
presented the claim to the appropriate Federal agency.'
28 U.S.C. § 2675(a).”). During the pendency of
this action-specifically, in September
2017-Plaintiff filed an administrative claim with
the Department of Health and Human Services
(“HHS”). The Magistrate Judge entered the R &
R in November 2017 noting Plaintiff had now
filed a timely administrative claim but had neither received
a final denial of her claim nor waited for the expiration of
six months after the filing of the claim. See R
& R at p. 9 (citing Ahmed v. United States, 30
F.3d 514, 518 (4th Cir. 1994)).
objections, which she filed in May 2018,  Plaintiff claims
that more than six months have passed since she filed her
administrative claim with HHS, that HHS “has failed to
make a final disposition” of the claim, and that
HHS's failure to do so can “be deemed a final
denial of the claim.” See ECF No. 58 at p. 6.
Plaintiff appears to be referring to the language in the FTCA
that provides, “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.” 28 U.S.C. § 2675(a). However, as this
Court has previously ruled, “[f]ailure to completely
exhaust administrative remedies before filing an FTCA claim
is a jurisdictional defect that cannot be cured by
administrative exhaustion after suit is filed.”
Smith v. Meeks, No.4:17-cv-00043-RBH-TER, 2017 WL
9288198, at *4 (D.S.C. June 16, 2017) (citing
McNeil, supra), adopted as
modified, 2017 WL 3262182 (D.S.C. Aug. 1, 2017); see
also Messino v. McBride, 174 F.Supp.2d 397, 399 (D. Md.
2001) (same). In other words, Plaintiff still must commence a
new action to pursue her claims under the FTCA. The Court
lacks subject matter jurisdiction over the instant
action and therefore must dismiss it.
as indicated above, Plaintiff filed an administrative claim
in September 2017, and she also filed a “Complaint for
Damages” on May 4, 2018, in conjunction with her
objections. See ECF No. 60. For administrative and
docketing purposes, the current case (No. 4:17-cv-01621-RBH)
needs to be dismissed without prejudice, and a new case with
the “Complaint for Damages” needs to be opened
and referred to the Magistrate Judge for pretrial handling.
Accordingly, the Court will direct the Clerk to open a new
action with a separate filing number and to docket
Plaintiff's “Complaint for Damages” in that
new case. Plaintiff may pursue her claims in that new action.
foregoing reasons, the Cou RANTS the United
States' motion to dismiss [ECF No. 38] and
DISMISSES this action without
prejudice. The Court DIRECTS the Clerk to
open a new action with a separate filing number and to docket
Plaintiff's “Complaint for Damart
overrules Plaintiff's objections and adopts and
incorporates by reference the Magistrate Judge's R &
R [ECF No. 44]. Accordingly, the Court
Gges” (ECF No. 60) in that new case. The
filing date of that new action should be May 4, 2018 (the
date the Complaint for Damages was filed).