United States District Court, M.D. Alabama, Northern Division
BRITNEY B. SCONIERS, Plaintiff,
MEGAN J. BRENNAN, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. MARKS, UNITED STATES DISTRICT JUDGE
pending before the court is the Recommendation of the
Magistrate Judge (doc. 65) which recommends that the
defendants' partial motion to dismiss (doc. 56) be
granted and that the plaintiff's claims for punitive
damages against defendant Megan J. Brennan in her official
capacity be dismissed, that the plaintiff's Title VII
claim against defendant USPS be dismissed, and that the
plaintiff's state law FTCA claims against defendants
Brennan and USPS be dismissed for lack of subject-matter
jurisdiction. (Doc. 65). On October 16, 2018, the plaintiff
filed objections to the Recommendation. (Doc. 66). The Court
has carefully reviewed the record in this case, including the
Recommendation, and the plaintiff's objections.
See 28 U.S.C. § 636(b).
party objects to a Magistrate Judge's Recommendation, the
district court must review the disputed portions of the
Recommendation de novo. 28 U.S.C. § 636(b)(1).
The district court “may accept, reject, or modify the
recommended disposition; receive further evidence; or
resubmit the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3). De novo
review requires that the district court independently
consider factual issues based on the record. Jeffrey S.
ex rel. Ernest S. v. State Bd. of Educ. Of Ga., 896 F.2d
507, 513 (11th Cir. 1990). See also United States v.
Gopie, 347 Fed.Appx. 495, 499 n. 1 (11th Cir. 2009).
However, objections to the Recommendation must be
sufficiently specific in order to warrant de novo
review. See Macort v. Prem, Inc., 208 Fed.Appx. 781,
783-85 (11th Cir. 2006). Otherwise, a Recommendation is
reviewed for clear error. Id. The plaintiff's
objections to the Recommendation lack specificity and fail to
state any factual bases for her objections. See Doc.
66. For example, “the plaintiff objects to all factual
and/or legal findings of the Magistrate
Judge.” (Id. at 3). Thus, due to the lack
of specificity in the plaintiff's objections, the Court
reviews the Recommendation for clear error, and finds that
the plaintiff's objections are due to be
on Martin v. United States, 439 Fed.Appx. 842 (11th
Cir. 2011) (No. 11-11140) (unpublished opinion), the
plaintiff first objects to the dismissal of her FTCA claims.
She argues that her claims should not be dismissed because
the claims “would have been timely had they been filed
on the date the underlying civil action was commenced.”
(Doc. 66 at 2). Her reliance on Martin is misplaced.
While 28 U.S.C. § 2679(d)(5) provides a limited
exception to an untimely filed FTCA claim, that section
“unquestionably includes a threshold condition, namely
that there is “an action or proceeding in which the
United States is substituted as the party defendant”
that “is dismissed for failure first to present a
claim” to the proper administrative agency. §
2679(d)(5). Martin, 439 Fed.Appx. at 845. Sconiers
cannot meet this condition because the United States has
never been substituted as a defendant in this action.
Consequently, the Court lacks subject matter jurisdiction
over the plaintiff's Federal Tort Claims Act
(“FTCA”) claims because she has failed to exhaust
her claims as required by the FTCA. See 28 U.S.C.
§ 2675(a). The plaintiff's exclusive remedy against
the individual defendants is pursuant to the FTCA.
See 28 U.S.C. § 2679. Under the FTCA, Congress
waived sovereign immunity and granted consent for the United
States to be sued for acts committed by any “employee
of the Government while acting within the scope of his office
or employment.” 28 U.S.C. § 1346(b)(1). However, a
prerequisite to filing suit is that “[a]n action shall
not be instituted . . . unless the claimant [has]
first presented the claim to the appropriate Federal
agency and [her] claim [has] been finally denied by the
agency in writing and sent by certified or registered
mail.” 28 U.S.C. § 2675(a) (emphasis added).
See Turner ex rel. Turner v. United States, 514 F.3d
1194, 1200 (11th Cir. 2008). See also Dalrymple v. United
States, 460 F.3d 1318, 1324 (11th Cir. 2006); Pompey
v. Coad, 314 Fed.Appx. 176, 179 (11th Cir. 2008)
(“A claimant under the FTCA, however, must meet certain
exhaustion requirements before a federal court may exercise
jurisdiction over a suit under the FTCA, including
presentation of a claim to the appropriate agency and denial
of the claim by the agency.”). This administrative
prerequisite is jurisdictional and cannot be waived.
Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237
(11th Cir. 2002) (administrative notice requirement is
jurisdictional and not subject to waiver); Lykins v.
Pointer, Inc., 725 F.2d 645, 646 (11th Cir. 1984)
brief in response to the defendants' motion to dismiss,
the plaintiff concedes that at the time she filed her
response, she had not yet filed an administrative claim as
required by the FTCA. See Doc. 61 at 12 (“The
plaintiff is mailing the administrative claim to the USPS
tomorrow.”) In her objections to the Recommendation,
she asserts that she has “presented the claim to the
United States Postal Service by certified
mail.” (Doc. 66 at 2). Thus, it is clear that the
plaintiff had not exhausted her administrative remedies when
she instituted this action, and she cannot establish that she
has satisfied the jurisdictional prerequisite for this court
to exercise jurisdiction over her FTCA claims. See
Lykins, 725 F.2d at 647 (a plaintiff must provide proof
that she satisfied the jurisdictional requirements to
institute suit against the government). See also Suarez
v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994)
(“A federal court may not exercise jurisdiction over a
suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency.”).
Her objection to the dismissal of her state tort law FTCA
claims are due to be overruled.
next objects to the dismissal of the individual defendants
but she provides the Court no legal or factual basis for her
objection. Thus, her objection is due to be
for the reasons as stated and for good cause, it is
as follows that:
1. the plaintiff's objections (doc. 66) are OVERRULED; 2.
the Recommendation of the Magistrate Judge (doc. 65) is
3. the defendants' partial motion to dismiss (doc. 56) be
and is hereby GRANTED.
4. the plaintiff's claims for punitive damages under
Title VII against defendant Megan J. Brennan in her official
capacity are DISMISSED.
5. the plaintiff's Title VII claim against USPS is
6. the plaintiff's state-law FTCA claims against Brennan
and USPS are DISMISSED for lack of subject matter
7. this case with respect to the plaintiff's remaining
claims is REFERRED BACK to the Magistrate Judge for ...