Filed: Sep. 12, 2018
Latest Update: Sep. 12, 2018
Summary: MEMORANDUM ORDER JOSEPH H.L. PEREZ-MONTES , Magistrate Judge . Plaintiff Darrell Small ("Small") filed a complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 2671-2680. The sole Defendant is the United States of America. 1 Small is presently incarcerated in the Natchitoches Parish Detention Center ("NPDC") in Natchitoches, Louisiana. Small contends in his complaint that he exhausted his administrative remedies through the United States Marshal's Service in a timely ma
Summary: MEMORANDUM ORDER JOSEPH H.L. PEREZ-MONTES , Magistrate Judge . Plaintiff Darrell Small ("Small") filed a complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 2671-2680. The sole Defendant is the United States of America. 1 Small is presently incarcerated in the Natchitoches Parish Detention Center ("NPDC") in Natchitoches, Louisiana. Small contends in his complaint that he exhausted his administrative remedies through the United States Marshal's Service in a timely man..
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MEMORANDUM ORDER
JOSEPH H.L. PEREZ-MONTES, Magistrate Judge.
Plaintiff Darrell Small ("Small") filed a complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. The sole Defendant is the United States of America.1 Small is presently incarcerated in the Natchitoches Parish Detention Center ("NPDC") in Natchitoches, Louisiana.
Small contends in his complaint that he exhausted his administrative remedies through the United States Marshal's Service in a timely manner. Small did not file a copy of his administrative complaint and the response thereto. Defendant filed a Motion to Dismiss (Doc. 11) that does not address the issues of exhaustion, the limitations period, the amount of damages claimed, or this Court's subject matter jurisdiction.
Absent a waiver of immunity, the United States is immune from suit in tort. See Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). Partial waiver, as found in the FTCA, exists wholly by virtue of congressional consent which fixes the terms and conditions on which suit may be instituted. See id. at 203. The controlling provision is 28 U.S.C. § 2675.2 The requirement of exhaustion of administrative review is a jurisdictional requisite to the filing of an action under the FTCA. See Molinar v. United States, 515 F.2d 246 (5th Cir. 1975); see also McNeil v. U.S., 508 U.S. 106, 113 (1993). Because it is a jurisdictional prerequisite, the filing of a claim in this case with the USMS cannot be waived. See Gregory, 634 F.2d at 203-04. Waivers of sovereign immunity must be strictly construed. Section 2675 is more than a mere statement of procedural niceties. It requires that jurisdiction must exist at the time the complaint is filed. See Gregory, 634 F.2d at 204.
Small raises two issues before this Court. The Court must review Small's administrative claim and the response thereto in order to determine: (1) the claim(s) Small made; and (2) the sum he requested.3
Accordingly, IT IS ORDERED that the Small SHALL FILE a copy of his administrative claim and the response thereto on or before September 14, 2018.
