1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARLOS A. MARTINEZ, Case No.: 21-CV-1542-GPC-AHG 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS AMENDED COMPLAINT 14 UNITED STATES OF AMERICA, [ECF No. 18] 15 Defendant. 16 17 On February 18, 2022, Defendant United States of America (“Defendant”) filed a 18 Motion to Dismiss Plaintiff’s Amended Complaint pursuant to Fed. R. Civ. P. (“Rule”) 19 12(b)(1), 12(b)(6) and 41(b). ECF No. 18. Plaintiff, proceeding pro se, filed an untimely 20 opposition styled as a “Motion Opposing Motion to Dismiss Amended Complaint.” ECF 21 No. 21. Defendant filed a reply. ECF No. 20. For the reasons that follow, the Court 22 HEREBY GRANTS Defendant’s Motion to Dismiss the Amended Complaint. The Court 23 finds this matter suitable for disposition on the papers and HEREBY VACATES the 24 hearing previously set for May 6, 2022. 25 26 27 1 I. BACKGROUND 2 Plaintiff, proceeding pro se, initially filed a complaint in the Superior Court of 3 California, County of San Diego. ECF No. 1-2 at 8. Defendant then removed the case to 4 this Court pursuant to 28 U.S.C. §§ 1441, 1442, and 1446. ECF No. 1 at 2. On October 5 29, 2021, Defendant filed a Motion to Dismiss Plaintiff’s Complaint, which this Court 6 granted with leave to amend. ECF No. 15. Plaintiff filed his Amended Complaint on 7 February 3, 2022. ECF No. 17. 8 The Amended Complaint alleges one cause of action under the Federal Tort 9 Claims Act (“FTCA”). Id. at 2. Plaintiff’s filing is devoid of detail and simply states that 10 “[t]he abuse of authority violations committed by the United States Border Patrol Agents 11 have triggered an allergic condition that in turn caused a physical disability [sic] not 12 being abel [sic] to walk normally must use a walker to aid walking . . .” Id. The Amended 13 Complaint also attaches copies of Plaintiff’s medical records from 2017, showing 14 treatment at San Francisco General Hospital for tongue and airway swelling. Id. at 6-16. 15 The Amended Complaint does not allege any facts as to when or where an encounter with 16 Border Patrol Agents might have occurred, what transpired at any encounter with such 17 Agents, or any further connection between an alleged encounter with Border Patrol and 18 the reactions documented in Plaintiff’s hospital treatment notes. Although the Amended 19 Complaint includes a copy of a handicapped parking placard and its record of issuance 20 from the Department of Motor Vehicles, the Amended Complaint does not explain if and 21 how this placard is related to his previous allergic reaction treatments, nor does it allege 22 any facts linking the placard and Plaintiff’s handicapped status to any actions or 23 encounters with Border Patrol beyond the conclusory statement cited above. 24 The Amended Complaint also includes an undated document which states that it 25 constitutes Plaintiff’s “administrative tort claim for payment of restitution in the amount 26 of $31,338, triggered by the abuse of authority violations that the United States Border 27 1 Patrol Agents committed against me while my [sic] reentry to the U.S.A. from Mexico. I 2 claim a printout of the United States Border Patrol with the names of the United States 3 Border Patrol Agents that met me in my reentry thru the Airport Charlotte North Carolina 4 in one occasion . [sic] reentry thru San Izidro Ca., Otay Ca. on several occasions.” Id. at 5 4. The document does not show whether Plaintiff sent this tort claim to any government 6 agency or other recipient, nor does it include the referenced printout. 7 II. DISCUSSION 8 Defendant moves to dismiss on a number of grounds. First, Defendant contends 9 that this Court lacks jurisdiction over Plaintiff’s claim because Plaintiff has not exhausted 10 his administrative remedies, as required by the FTCA. ECF No. 18 at 3. Defendant also 11 argues that dismissal is appropriate because the Amended Complaint fails to allege 12 sufficient facts to support a claim under the FTCA. Finally, Defendant argues that the 13 Amended Complaint should be dismissed under Rule 41(b) because it violates Rules 8 14 and 10 for minimal standards of coherent pleadings. 15 A. Administrative Exhaustion under the Federal Tort Claims Act 16 The FTCA allows a plaintiff to bring certain state-law tort claims against the 17 government of the United States, whose sovereign immunity is thereby waived for certain 18 torts committed by federal employees acting within the scope of their employment. 19 Brownback v. King, 141 S. Ct. 740, 746 (2021). The statute provides that an action shall 20 not be instituted upon a claim against the United States for money damages unless the 21 claimant has first properly exhausted his administrative remedies. 28 U.S.C.A. § 2675(a); 22 McNeil v. United States, 508 U.S. 106, 107 (1993). Administrative exhaustion requires 23 that the claimant present the claim to the appropriate Federal agency and that the claim 24 shall have been finally denied by the agency, either in writing or through the agency’s 25 failure to make a final disposition of the claim within six months after it is filed. 28 26 U.S.C.A. § 2675(a). Where a plaintiff fails to exhaust administrative remedies, a district 27 1 court lacks subject matter jurisdiction over the claim. Brady v. United States, 211 F.3d 2 499, 502 (9th Cir. 2000) (stating that because the administrative exhaustion requirement 3 is jurisdictional, it must be strictly adhered to); Jerves v. United States, 966 F.2d 517 (9th 4 Cir. 1992) (noting that the claim requirement of section 2675 is jurisdictional in nature 5 and may not be waived). 6 The premature filing of an FTCA action cannot be cured by the filing of an 7 amended complaint, but instead, plaintiff must file a new suit. Sparrow v. United States 8 Postal Serv., 825 F. Supp. 252, 255 (E.D. Cal. 1993) (discussing Supreme Court 9 precedent and statutory language, and concluding that the exhaustion requirement would 10 be rendered meaningless if the claimant were permitted to bring suit prematurely and 11 simply amend his complaint after denial of the administrative claim); see also McNeil, 12 508 U.S. at 109-110 (affirming Seventh Circuit decision which affirmed the District 13 Court’s decision to dismiss the case in its entirety due to failure to exhaust administrative 14 remedies). Plaintiffs proceeding without counsel are subject to the same standards and 15 procedural requirements for exhaustion as litigants who have retained counsel. Id. at 113 16 (“[W]e have never suggested that procedural rules in ordinary civil litigation should be 17 interpreted so as to excuse mistakes by those who proceed without counsel.”) 18 Here, Plaintiff gestures toward the administrative exhaustion requirement by 19 including a purported “administrative tort claim” in his Amended Complaint. ECF No. 17 20 at 4. However, as Defendant points out, the administrative claim is undated and Plaintiff 21 does not allege or show that he presented the claim to any federal agency, let alone the 22 appropriate one. There is also no allegation that the claim was either ignored or denied by 23 a federal agency, as required by the FTCA before an action in the district court can be 24 commenced. As such, Plaintiff has failed to allege administrative exhaustion and 25 therefore this Court lacks subject matter jurisdiction over Plaintiff’s claim. 26 27 1 Plaintiff's argument to the contrary 1s unavailing. Plaintiff argues that the FTCA 2 “does not state a federal Judge is stripped of his power of authority in this federal court 3 inlight [sic] that your honor has been issuing orders in this case confirms this fact.” ECF 4 21 at 2. However, the issue of subject matter jurisdiction had not yet squarely come 5 || before this Court. See ECF no. 15 at 2 (granting Defendant’s Motion to Dismiss based on 6 || sovereign immunity). Now that Plaintiff has defined his claim under the FTCA, and 7 || Defendant has raised the issue of subject matter jurisdiction as it relates to that statute, 8 || this Court has occasion to analyze the issue of administrative exhaustion. The fact that 9 || this Court has issued previous orders in this action does not confer subject matter 10 || jurisdiction on Plaintiff's FTCA claim where administrative exhaustion has not been 11 || properly satisfied. 12 The Court therefore concludes that Plaintiff has failed to properly exhaust his 13 || administrative remedies as required by the FTCA, and therefore this Court lacks subject 14 || matter jurisdiction over this claim, which must be dismissed. Since the Court decides the 15 || matter under Rule 12(b)(1), there is no need for the Court to analyze Defendant’s 16 || arguments as to Rule 12(b)(6) or Rule 41(b) dismissal. 17 CONCLUSION 18 Because Plaintiff has failed to heed the clear statutory command that his claims 19 || must be properly administratively exhausted before suit in a district court may be filed, 20 || this Court HEREBY GRANTS Defendant’s Motion to Dismiss. Leave to amend would 21 || be futile, and accordingly, the Court directs the Clerk to enter judgment dismissing this 22 || case in its entirety. 23 IT IS SO ORDERED. 24 ||Dated: April 28, 2022 72 25 Hon. athe Cae 26 United States District Judge 27 ; 28 21-CV-1542-GPC-AHG