United States District Court, E.D. Arkansas, Pine Bluff Division
Kristine G. Baker United States District Judge
Court has reviewed the Proposed Findings and Recommendations
(“Recommendation”) filed by United States
Magistrate Jerome T. Kearney (Dkt. No. 39). Plaintiff James
McAlphin has filed an objection to the Recommendation (Dkt.
No. 40). Defendant the United States of America requested
leave to file a response to Mr. McAlphin's objection (Dkt
No. 41), and Judge Kearney granted that motion (Dkt. No. 42).
The United States of America then filed a response (Dkt No.
43) to which Mr. McAlphin replied (Dkt. No. 44). Since that
time, separate defendants Kidd Campbell and Dennis Cornes
have filed a motion for summary judgment (Dkt. No. 68), and
Mr. McAlphin has filed a series of motions (Dkt. No. 74, 76).
This Court construes these remaining pending motions as
unrelated to the claim at issue in the Recommendation
currently before the Court (Dkt. No. 39). The Court makes no
finding in this Order as to the remaining pending motions.
issue in the operative Recommendation is Mr. McAlphin's
claim under the Federal Tort Claims Act (“FTCA”)
that he was injured on September 30, 2013, when he was
transported by Arkansas Department of Correction officers to
the federal building in Fayetteville, Arkansas, where he was
scheduled to testify as a witness in a court proceeding (Dkt.
No. 1). The Court writes separately to address Mr.
McAlphin's objections. Judge Kearney determined that the
Court lacked subject matter jurisdiction under FTCA because
Mr. McAlphin did not exhaust his administrative remedies
before pursuing litigation in this case (Dkt. No. 15, at
3-4). Specifically, defendants claim, and Judge Kearney
recommends a finding that, Mr. McAlphin did not file an
administrative tort claim with the United States Marshal
Service prior to filing this lawsuit. Defendants state that
the administrative claim is a jurisdictional prerequisite to
the filing of a suit pursuant to the FTCA, and that Mr.
McAlphin bears the burden of proving he filed such a claim
(Dkt. No. 31, at 2). This Court agrees with those assertions.
See 28 U.S.C. § 2675(a); Mader v. United
States, 654 F.3d 794, 798 (8th Cir. 2011)(en
banc); Walker v. United States, 176 F.3d 437,
438 (8th Cir. 1999); Daniels v. United States, 135
Fed.Appx. 900, 2005 WL 1404770 (8th Cir. 2005).
Judge Kearney recommends that defendants' motion to
dismiss be granted. Mr. McAlphin's objections, however,
contend that he did file an administrative tort claim with
the United States Marshals Office before filing this lawsuit
(Dkt. No. 37). Mr. McAlphin contends that Judge Kearney
construed this filing as a brief restating Mr. McAlphin's
allegations, when, Mr. McAlphin asserts, in reality it is a
copy of the Federal Tort Claim that was submitted to the
Marshals Office (Dkt No. 40, at 1). In response, defendants
have put into the record an affidavit from Clifton T.
Massanelli, a United States Marshal for the Eastern District
of Arkansas, stating that the Marshals Office never received
any such claim from Mr. McAlphin (Dkt No. 43, ¶ 5).
purposes of the Court's analysis, a claim shall be deemed
to have been presented “when a Federal agency receives
from a claimant, his duly authorized agent or legal
representative, an executed Standard Form 95 or other written
notification of an incident, accompanied by a claim for money
damages....” 28 C.F.R. § 14.2(a). In this case, an
executed Standard Form 95 is not at issue, as Mr. McAlphin
claims this was unavailable to him.
motion to dismiss stage, because the gravamen of the motion
to dismiss is subject matter jurisdiction, the court
“is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case.”
Osborn v. United States, 918 F.2d 724, 730 (8th Cir.
1990). Thus, when considering a Rule 12(b)(1) motion
to dismiss for lack of subject matter jurisdiction, the
plaintiff bears the burden of establishing jurisdiction.
Id. In addition, the court can make credibility
determinations and weigh conflicting evidence. T.L. ex.
rel. Ingram v. United States, 443 F.3d 956, 961 (8th
issue now is the fact that Mr. McAlphin states that he mailed
a claim to the Marshals Office before filing suit, and
defendants claim that the Marshals Office never received this
claim-the implication being that it was never mailed. The
Court construes this as a credibility determination. The
Court notes that, in his complaint, Mr. McAlphin states that
he filed something with the Marshals Office, but he does not
include a copy of the purported claim that he mailed, even
though the complaint instructs that failure to attach the
required copies of the grievance procedure to the complaint
may result in the dismissal of his case (Dkt. No. 1, at 2).
Eighth Circuit Court of Appeals has held that the plaintiff
in a FTCA action bears the burden of proof to show that
presentment was properly made. Bellecourt v. United
States, 994 F.2d 427, 430 (8th Cir. 1993), cert.
denied, 510 U.S. 1109 (1994). “The FTCA is a
limited waiver of sovereign immunity which requires
compliance with the conditions enacted by Congress. These
conditions are construed narrowly and include the requirement
that before filing an FTCA action the claimant
‘present' an administrative claim requesting a sum
certain in damages to the appropriate federal agency and that
the claim be finally denied.” Id. (citing 28
U.S.C. § 2675(a)). A claim brought pursuant to the FTCA
may be properly dismissed for inadequate presentment if a
plaintiff fails to show that the government actually received
the claim. Id. Proof that a claim was sent to a
government agency does not constitute proof that the claim
was received for presentment purposes. Receipt requires a
separate showing. See Moya v. United States, 35 F.3d
501, 504 (10th Cir. 1994) (plaintiff's counsel's
affidavit stating that claim was mailed to Department of
Veterans Affairs was insufficient to show receipt);
Rhodes v. United States, 995 F.2d 1063, *2 (4th Cir.
1993) (plaintiff's counsel's failure to prove receipt
of FTCA claim sent via first-class mail was insufficient to
show presentment); Drazan v. United States, 762 F.2d
56, 58 (7th Cir. 1985) (“[M]ailing is not presenting;
there must be receipt.”); Bailey v. United
States, 642 F.2d 344, 347 (9th Cir. 1981)
(plaintiffs' counsel's mailing of FTCA claim to the
Air Force by regular mail, rather than by certified or
registered mail, was insufficient to prove receipt); Polk
v. United States, 709 F.Supp. 1473, 1474 (N.D. Iowa
1989) (in an action against the United States Postal Service
the district court determined that, even if plaintiff's
allegation that he mailed a request was accepted as true,
that fact would not prove receipt).
upon the foregoing case law and the record currently before
the Court, even if the Court credits Mr. McAlphin's
representations, Mr. McAlphin placing his alleged FTCA claim
in a mailbox is not sufficient to show that the claim was
received by the Marshals Office. See Wheeler v. United
States of America, 2013 WL 6048761, at *2 (W.D. Ark.
2013), aff'd, 571 F. App'x 504 (8th Cir.
2014). This Court finds that Mr. McAlphin has not met his
burden of establishing subject matter jurisdiction in this
case because he has not shown that the proper federal agency
received his claim under the FTCA before he filed this
McAlphin alleges that his FTCA claim accrued on September 30,
2013, and this Court concludes that he failed to exhaust
properly his administrative remedies prior to filing suit in
this case on July 6, 2015 (Dkt. No. 1). Federal law makes
clear that a tort claim against the United States is barred
unless it is properly presented in writing to the appropriate
agency within two years of accrual. Therefore, Mr.
McAlphin's FTCA claims are dismissed with prejudice.
Wheeler, 2013 WL 6048761, at *3.
after careful review of the Recommendation, the timely
objections, the response and reply to the objections, and a
de novo review of the record, the Court concludes
that the Recommendation should be, and hereby is, approved
and adopted in its entirety as this Court's findings in
it is so ordered that:
Recommendation is approved and adopted (Dkt. No. 39).
Defendant United States of America's motion to dismiss
for lack of jurisdiction pursuant to Federal Rule of Civil