United States District Court, E.D. New York
ROBERT V. BRISCOE, Plaintiff,
U.S. DEPARTMENT OF VETERANS AFFAIRS, UNITED STATES ARMY & ARMED FORCES, U.S. DVA MEDICAL CENTER NORTHPORT, U.S. DEPARTMENT OF DEFENSE, Defendants.
SANDRA J. FEUERSTEIN, District Judge.
On March 18, 2014, pro se plaintiff Robert V. Briscoe ("plaintiff') filed: (1) a complaint against defendants U.S. Department of Veterans Affairs ("the VA"), United States Army and Armed Forces ("the Army"), the U.S. [VA] Medical Center Northport ("the VA Medical Center") and the U.S. Department of Defense ("DOD"), asserting claims seeking damages for medical malpractice and wrongful death concerning the death of his father, Robert B. Briscoe, in 1988, while he was "under the care of the [VA]" at "the VA Medical Center in Northport, N.Y., " (Compl. at ¶ III.A-B), which are liberally construed to be tort claims against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(6) and 2671 et seq.;  and (2) an application to proceed in forma pauperis. Since plaintiff's financial status, as set forth in his declaration in support of his application to proceed in forma pauperis, qualifies him to commence this action without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), his application to proceed in forma pauperis is granted. However, for the reasons set forth below, the complaint is sua sponte dismissed without prejudice pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.
I. Subject Matter Jurisdiction
A. Standard of Review
Federal courts are courts of limited jurisdiction, see Gunn v. Minton, ___ U.S. ___, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013); Mims v. Arrow Financial Services, LLB, ___ U.S. ___, 132 S.Ct. 740, 747, 181 L.Ed.2d 881 (2012), and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (holding that federal courts may not exercise jurisdiction absent a statutory basis); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (holding that federal courts "possess only that power authorized by Constitution and statute * * *.") Lack of subject matter jurisdiction cannot be waived or forfeited and may be raised at any time by a party or by the court sua sponte. See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012); see also Sebelius v. Auburn Regional Medical Center, ___ U.S. ___, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) ("Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy."). If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Fracasse v. People's United Bank, ___ F.3d ___, 2014 WL 1243811, at * 2 (2d Cir. Mar. 27, 2014); Durant, Nichols, Houston, Hodgson & Cortese-Costa. P.C. v. Dupont 565 F.3d 56, 62-3 (2d Cir. 2009).
It is axiomatic that district courts are required to read pro se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct, 285, 50 L.Ed.2d 251 (1976)); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they suggest." Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the complaint." Harrington v. County of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010); see also Ashcroft v. Iobal 556 U.S. 662 . 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
B. Sovereign Immunity
"The United States, as sovereign, is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Hercules Inc. v. United States, 516 U.S. 417, 422-23, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quotations, brackets and citation omitted); see also AmBase Corp. v. United States, 731 F.3d 109, 118 (2d Cir. 2013) (accord). In Long Island Radio Co. v. National Labor Relations Board, 841 F.2d 474, 477 (2d Cir. 1988), the Second Circuit held:
"Since jurisdiction to entertain a claim against the United States exists only as Congress has granted it, neither an agency nor a court has the power to entertain claims that do not meet the conditions limiting the waiver of immunity. Where a statute authorizing a claim against the United States contains time limits for filing the claim, those limits set the temporal boundaries of the consent to be sued; they grant the tribunal in which the claim is to be filed jurisdiction to entertain only those claims that are filed within the time allowed by the statute. * * * [S]uch a time limit is an enabling statute, evidencing a consent to be sued and fixing the time for suing; it is not a statute of limitations but a statute granting for a limited time the right of action afforded."
Id. (quotations, brackets and citations omitted); see also Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994) ("A claimant is not entitled to bring suit against the government without first having complied with all statutory and regulatory prerequisites to such a suit."); Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991) ("When an action is brought against the United States government, compliance with the conditions under which the government has agreed to waive sovereign immunity is necessary for subject matter jurisdiction to exist.")
C. The FICA
"The FTCA * * * was designed primarily to remove the sovereign immunity of the United States from suits in tort[, ]" Levin v. United States, ___ U.S. ___, 133 S.Ct. 1224, 1228, 185 L.Ed.2d 343 (2013) (quotations and citation omitted), and "gives federal district courts exclusive jurisdiction over claims against the United States for * * * personal injury or death caused by the negligent or wrongful act or omission' of federal employees acting within the scope of their employment." Id . (quoting 28 U.S.C. § 1346(b)(1)); see also Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 80 (2d Cir. 2005) ("The FTCA waives the United States's sovereign immunity for certain classes of torts claims and provides that the federal district courts shall have exclusive jurisdiction over damages claims against the United States for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.'" (quoting 28 U.S.C. § 1346(b)(1))). Specifically, the FTCA waives the United States's sovereign immunity for, inter cilia, medical malpractice claims based upon negligence, see Levin, ___ U.S. ___, 133 S.Ct. at 1231 ("[M]edical malpractice claims may be based on negligence, in which case the FTCA's waiver of the Government's sovereign immunity is not in doubt."), and wrongful death claims, see Davis v. United States, 143 F.Appx. 371, 372 (2d Cir. July 25, 2005) (summary order) ("FTCA permits individuals to file, inter cilia, wrongful death tort claims against the United States based on the acts of a government employee who is acting within the scope of his or her employment").
The FTCA's waiver of sovereign immunity, however, "operates subject to numerous conditions, each of which must be satisfied for a court to exercise jurisdiction." Adeleke v. United States. 355 F.3d 144, 153 (2d Cir. 2004); see also In re World Trade Center Disaster Site Litigation, 521 F.3d 169, 189 (2d Cir. 2008) (accord); Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) ("In order to state a claim under the FTCA, the person attempting to assert it must comply with several strictly construed prerequisites.") "One such condition is that a plaintiff must first file an administrative claim with the appropriate federal agency before suing for relief in federal court, " Adeleke, 355 F.3d at 153; see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies"); Celestine, 403 F.3d at 82 ("The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court."); Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) ("The [FTCA's] limitations foreclose suit unless the tort claimant has previously presented to the appropriate administrative agency a claim that meets the specific statutory requirements as to its form, content, and timing.") Specifically, the FTCA provides, in relevant part:
"An action shall not be instituted upon a claim against the United States for money damages for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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 and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it ...