United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE
Monica Abrams (“Abrams”) filed this action in the
District Court of Jefferson County, Alabama
(DV-20180-000128.00) on May 4, 2018. (See doc. 1 at
1). Abrams seeks compensatory damages based on allegations
that a United States Postal Service vehicle struck her
vehicle causing damage. (Id. at 6). On January 18,
2019, the United States removed this action to this Court and
filed a motion to dismiss. (Docs. 1 & 4). That same day,
the undersigned entered an order setting a deadline to
respond to the motion to dismiss. (Doc. 5). That order
explained that “[a]ny opposition to the motion to
dismiss must be filed by February 1, 2019.”
(Id.). Abrams did not file any timely opposition to
the motion. However, on February 11, 2019, Abrams submitted a
sixteen-page document titled “Notice!! Treated
Unfairly.” (Doc. 8). Although these materials were
received after the deadline, the undersigned construed
Abrams' filing as a response to the motion to dismiss.
(See doc. 10). The undersigned has read and
considered Abrams' filing. For the reasons explained
below, the United States' motion to dismiss (doc. 4) is
United States moves to dismiss Abrams' complaint
contending Abrams failed to exhaust administrative remedies,
which is a jurisdictional prerequisite to bringing a lawsuit
against the United States. (Doc. 4 at 1). Abrams contends
that, when the collision occurred, a supervisor told Abrams
she would take care of her paperwork for the damages to her
vehicle. (Doc. 8 at 1). Abrams submits a police report,
photographs from the accident, and a letter from the United
States Postal Service regarding the accident investigation.
United States cannot be sued, except as it consents to be
sued. Dalehite v. United States, 346 U.S.
15, 30-31 (1953). For a damages action to proceed against the
United States, there must be a clear waiver of sovereign
immunity. Any such waiver must be strictly complied with,
since it will define a court's subject matter
jurisdiction. United States v. Sherwood, 312 U.S.
584, 586 (1941). The Federal Tort Claims Act, 28 U.S.C.
§§ 1346, 2671 et seq., is a limited waiver
of the general sovereign immunity of the United States. One
of the limitations is that no tort action can be instituted
against the United States until an administrative tort claim
has been filed with the appropriate federal agency. 28 U.S.C.
§ 2675(a) states:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or 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 . . .
with § 2675(a) is a jurisdictional prerequisite to
maintaining a lawsuit against the United States. Lykins
v. Pointer Inc., 725 F.2d 645, 646 (11th Cir. 1984);
Bush v. United States, 703 F.2d 491, 494 (11th Cir.
1983); Gregory v. Mitchell, 634 F.2d 199, 203-04
(5th Cir. 1981). Moreover, this jurisdictional defect cannot
be cured by filing an administrative claim after filing a
complaint in court. McNeil v. United States, 508
U.S. 106 (1993).
allegations arising out of a motor vehicle accident allegedly
caused by Calloway, an employee of the United States Postal
Service (and now certified as a federal employee of the
United States under 28 U.S.C. § 2679(d)(1)), resulting
in alleged damage to Abrams' vehicle, sound in tort. The
United States has provided the Declaration of Kimberly A.
Herbst, Supervisor, Tort Claims Examiner/Adjudicator with the
United States Postal Service National Tort Center, St. Louis,
employed by the U.S. Postal Service in, St. Louis, Missouri.
(Doc. 4 at 7-8). Supervisor Herbst attests that Abrams failed
to satisfy the administrative claim requirement of 28 U.S.C.
§ 2675(a) because she did not file an administrative
claim with the U.S. Postal Service, prior to filing this
action. (Doc. 4 at 8). Because the U.S. Postal Service has
not received a claim for damages regarding the allegations
raised in Abrams' complaint, the requirements of the FTCA
have not been met. Therefore, this Court lacks jurisdiction
over Abrams' cause of action.
submission (“Notice!! Treated Unfairly, ” doc. 8)
does not show otherwise. The police report included in her
submission indicates that the alleged collision occurred on
August 4, 2016. (Doc. 8 at 11). Abrams contends that a
“supervisor” at the scene provided Abrams her
name and telephone number and told Abrams she (the
supervisor) would take care of Abrams' paperwork for the
damages to her vehicle. (Id. at 1). Approximately a
month later, Abrams received a letter from the United States
Postal Service dated September 1, 2016. (Doc. 8 at 3-5). This
letter included the heading “Alabama District Tort
Claims” and stated it referenced “Accident
Investigation.” (Id. at 3). The letter
acknowledges Abrams' “request” and provides a
claim form SF 95 - “Claim for Damage, Injury or
Death.” (Id. at 3). The letter states, in
part, as follows: “In order for this claim to receive
proper consideration, it is requested that you supply all
material facts on this form, as this will be the basis for
further action on your claim.” (Id.). The
letter includes further instructions and advisories,
including that “[a]ll sections of the form must be
completed[, ]” “DO NOT LEAVE ANY SPACES BLANK[,
]” and “Failure to specify a sum certain (12d)
will result in invalid presentation of your claim and may
result in forfeiture of your rights.” (Id.).
Thus, although Abrams submits evidence she received this
information on how to pursue an administrative claim, there
is no evidence to show Abrams ever completed or filed the SF
95, or that if it was filed, it was filed correctly.
Furthermore, Abrams' assertion that a supervisor at the
scene said she would “take care of [Abrams']
paperwork for the damage to [her] truck[, ]” does not
excuse Abrams' failure to exhaust her administrative
remedies. It appears the supervisor ensured that a claim was
opened, and that Abrams received a letter with instructions
on how to pursue her claim. There is no evidence Abrams
pursued that claim any further to properly exhaust her
reasons stated above, Defendant's motion to dismiss is
GRANTED, and this action will be
DISMISSED WITHOUT PREJUDICE. A separate
order will be entered.
 The United States has been substituted as
the defendant because it is the only proper defendant in this
Federal Tort Claims Act case. Federal Employees Liability
Reform and Tort Compensation Act of 1988 §§ 5,
6, Pub. L. No. 100-694, 102 ...