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March 18, 2003


The opinion of the court was delivered by: Sidney H. Stein, United States District Judge.


Adolph Bowman, a retired United States Postal Service employee, has brought this action pro se to recover for injuries allegedly arising from an assault by a co-worker. Bowman also asserts a claim for medical malpractice against Dr. Lilly Lee, an M.D. who was employed at a Veterans Affairs hospital. Defendants have now moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. That motion is granted on the grounds that (1) the United States is the only proper defendant; (2) plaintiff's assault and related negligence claims are barred by an exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.; and (3) plaintiff's medical malpractice claim is barred by the statute of limitations.


The following facts are taken from the Amended Complaint: Mr. Bowman alleges that he was "attacked" by a co-worker while they both were working at the Morgan Station branch of the United States Postal Service in Manhattan. Amended Compl. at 1. The worker who attacked him is identified by name in the complaint but is not named as a defendant. Bowman reported the incident the same day, and repeated his allegations to a variety of federal agencies on a number of subsequent occasions.

Three weeks after the assault, Lilly Lee, M.D., treated Bowman at the Bronx Veterans Affairs Medical Center. At the time, Bowman complained of "a lot of pain in my right shoulder and neck." Id. Dr. Lee prescribed two days of rest. At a later date, Bowman sought treatment from another doctor for his injury and learned that he had suffered a torn rotator cuff in his shoulder as a result of the attack. Bowman Opp. at 2.

Bowman commenced this action on July 31, 2002 and later amended his complaint. Defendants now move to dismiss the Amended Complaint for lack of subject matter jurisdiction.


A. Legal Standards

An action must be dismissed for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) when the trial court lacks the power to adjudicate the case. A plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence. See Markarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

In considering a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material allegations in the [c]omplaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Serrano v. 900 5th Ave. Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998) (citations omitted). The Court may consider evidence outside the pleadings, such as affidavits and other documents. See Makarova, 201 F.3d at 113. Where a plaintiff appears pro se, the Court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).

B. The United States is the Only Proper Defendant

Bowman's claims against defendants — assault by a co-worker and medical malpractice by a doctor employed at a Veterans Affairs hospital — are tort claims and are therefore governed by the FTCA. Although Bowman has named the United States Postal Service and United States Postal Inspectors as defendants, the FTCA expressly provides "that only the United States may be held liable for torts committed by a federal agency, and not the agency itself." C.P. Chemical Co., Inc. v. United States, 810 F.2d 34, 37 n. 1 (2d Cir. 1987) (citing 28 U.S.C. § 2679 (a)); Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991) (same). Construing "United States Postal Inspectors" to be the entity known as United States Postal Inspection Service, both the U.S. Postal Service and the U.S. Postal Inspection Service have been held to be "federal agencies" within the definition of that term in the FTCA. See U.S.C. § 2671; Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975). In lieu of requiring a pro se litigant to further amend the Amended Complaint to name the United States as a defendant, this Court will on its own motion substitute the United States as the defendant in the place and stead of the United States Postal Service and United States Postal Inspection Service.

The FTCA also provides that if the Attorney General of the United States certifies that an employee of a federal agency who is named as a defendant was "acting within the scope of [her] office or employment at the time of the incident out of which the claim arose," then the action "shall be deemed an action . . . against the United States . . . and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679 (d)(1); McHugh v. University of Vermont, 966 F.2d 67, 70 (2d Cir. 1992). The United States Attorney for the Southern District of New York, on behalf of the Attorney General, has certified that Dr. Lee "was acting within the scope of her employment with the United States Veterans Administration at all times relevant to the incidents alleged in plaintiff's complaint." Torrance Decl., Ex. I; see 28 C.F.R. ...

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