REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

Regina Denise Johnson ("Plaintiff"), proceeding pro se and in forma pauperis, sues the United States of America ("the United States") and Raymond Mitchell, Local President of the American Federation of Government Employees ("Mitchell"). This matter comes before the court on: (1) Mitchell's motion to dismiss [ECF No. 27] and (2) the United States' motion to dismiss [ECF No. 55]. On June 13, 2017, and October 19, 2017, the court issued orders pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), notifying Plaintiff of the dismissal procedures and possible consequences if she failed to adequately respond to the motions to dismiss [ECF No. 29, 57]. The motions having been fully briefed [ECF Nos. 34, 35, 59], they are ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motions to dismiss are dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant the motions to dismiss.

I. Procedural and Factual Background

Plaintiff is an employee of the Department of Veteran Affairs ("DVA") in Columbia, South Carolina. In addition to Mitchell, Plaintiff originally sued the DVA, Kenyetta McKnight, and Mark A. Turner. [ECF No. 1]. On October 11, 2017, the United States filed a notice of substitution of party for Plaintiff's state law causes of action against Turner and McKnight and attached a certification from the United States Attorney for the District of South Carolina that McKnight and Turner were acting within the scope of their DVA employment at the time of the incident from which the state law claims arose. [ECF No. 48]. Therefore, the United States was substituted for McKnight, Turner, and the DVA. [ECF No. 49].

Plaintiff presents the following facts in her complaint:1 Plaintiff alleges she asked Turner for her pay stub, but he could not provide it and referred her to McKnight. [ECF No. 1-2 at 2]. Plaintiff claims McKnight told her she was no longer responsible for pay statements. Id. Plaintiff and McKnight engaged in an altercation, and the police were called. Id. Ultimately, Plaintiff was arrested and spent a night detained at the Alvin S. Glenn Detention Center. Id.

Plaintiff alleges she was terminated from her second job because of her arrest for assault and battery. Id. at 4. Plaintiff claims she spoke to Mitchell to file a complaint against McKnight, and he told her numerous times "I've got this." Id. Plaintiff further alleged:

Id. Plaintiff claims Mitchell failed to represent her in a timely manner. [ECF No. 1-1 at 5].

II. Discussion

A. Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support" the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

B. Analysis

1. Mitchell's Motion to Dismiss

Mitchell argues that this court is without jurisdiction over the claims against him. Specifically, Mitchell argues the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7101 et seq., codified as the Federal Service Labor-Management Relations Statute ("FSLMRS"), at 5 U.S.C. §§ 7106(b)(2)-(3), provides Plaintiff, as a federal employee, the exclusive remedy on her claim that the union failed to properly represent her and/or breached a duty of fair representation owed to her. The CSRA established an exclusive remedy for such claims through the Federal Labor Relations Authority ("FLRA"), an administrative agency. The Supreme Court of the United States has held that the FLRA has exclusive jurisdiction over complaints of unfair labor practices, including alleged breaches of federal employee unions' duty of fair representation. Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 532-33 (1989).

In response to the motion to dismiss, Plaintiff filed a letter to the court indicating that she did not want Mitchell to be dismissed and wanted a jury trial. She provided no legal arguments.

Based on the foregoing, the undersigned recommends Mitchell's motion to dismiss be granted, as this court lacks jurisdiction over Plaintiff's claims against Mitchell.

2. The United States' Motion to Dismiss

The United States argues that Plaintiff's claims against it must be dismissed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA"). Specifically, the United States argues Plaintiff's claims should be dismissed because (1) the United States has not waived sovereign immunity for intentional torts of false arrest by non-law enforcement personnel, libel, or slander, and (2) Plaintiff has failed to exhaust her administrative remedies pursuant to the FTCA.

It is axiomatic that the United States, as sovereign, may not be sued without its consent and that the terms of its consent define the court's jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). Thus, relief against the United States requires a waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). Through the FTCA Congress has waived sovereign immunity for certain tort claims against the United States. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188 (1936). As a result of this limited waiver of sovereign immunity, the United States can be sued in tort for the negligent acts of federal employees.

However, the FTCA does not waive sovereign immunity for intentional torts such as false arrest,2 libel, and slander. See 28 U.S.C. § 2680(h). The United States argues it is entitled to dismissal for lack of subject matter jurisdiction.

Even if Plaintiff's claims were not barred by sovereign immunity, the United States argues such claims would require dismissal because Plaintiff did not exhaust her administrative remedies pursuant to the FTCA. The FTCA prohibits the filing of a civil action against the United States unless the underlying claim is first presented to the appropriate federal agency and subsequently denied. 28 U.S.C. § 2675(a). Unless a claim is first presented to the appropriate agency, the district court lacks subject matter jurisdiction. See McNeil v. United States, 508 U.S. 106, 112 (1993) (upholding dismissal of suit against Government where plaintiff had not exhausted available administrative remedies and observing that "[t]he most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process."); see also 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)") (internal citations omitted).

In response to the United States' arguments, Plaintiff argues only that she denies the motion and wishes for a jury trial. [ECF No. 59]. The undersigned recommends the United States' motion to dismiss be granted, and this matter be dismissed without prejudice.3

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the motions to dismiss by Mitchell [ECF No. 27] and the United States [ECF No. 55] be granted and this matter dismissed without prejudice.

IT IS SO RECOMMENDED.