White v. Department of Veterans Affairs

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Dominique Antaune White, No. CV-24-00013-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Department of Veterans Affairs, et al., 13 Defendants. [15] 16 Before the court are the Government’s motion to dismiss (Doc. 25) and several 17 motions submitted by Plaintiff Dominique Antaune White (Docs. 21, 22, 23, & 33). For 18 the reasons set forth herein, the Court grants the Government’s motion, rendering White’s 19 motions moot. 20 I. Background 21 White, who is self-represented, alleges that he visited the Veteran Medical Center 22 in Phoenix, Arizona in 2017. (Doc. 1 at 4.) He claims that, during his visit, he was 23 forcefully administered drugs and sexually assaulted. (Id.) He filed this claim on January 24 3, 2024. (Id. at 1.) He has since filed several motions: a “motion to have medical 25 information disclose[d] to cooperate with investigation” (Doc. 21); a “motion for concern 26 of safety and security for pittybike@gmail.com” (Doc. 22); a “motion in remembrance of 27 Maggie Hurtzell” (Doc. 23); and a “motion to comply with federal investigation” (Doc. 28 33). 1 White did not submit an administrative claim to the Department of Veterans Affairs 2 (“VA”) prior to filing suit. (Doc. 25-1.) The Government now moves to dismiss for lack of 3 subject matter jurisdiction due to White’s failure to exhaust his administrative remedies. 4 (Doc. 25 at 1.) 5 I. Legal Standard 6 Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a case 7 for lack of subject matter jurisdiction. Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 8 495, 499 (9th Cir. 2001), overruled on other grounds by Hertz Corp. v. Friend, 559 U.S. 9 77 (2010); see also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 (9th Cir. 10 2011). “Motions to dismiss under this Rule ‘may attack either the allegations of the 11 complaint as insufficient to confer upon the court subject matter jurisdiction, or the 12 existence of subject matter jurisdiction in fact.’” Sabra v. Maricopa Cnty. Comty. Coll. 13 Dist., 479 F. Supp. 3d 808 , 813 (D. Ariz. 2020) (quoting Renteria v. United States, 452 F. 14 Supp. 2d 910, 919 (D. Ariz. 2006)). 15 In resolving a facial attack, the court must accept the allegations in the complaint as 16 true and construe them in a light most favorable to the plaintiff. Renteria, 452 F. Supp. 2d 17 at 919 . Dismissal is improper unless it appears beyond doubt that the plaintiff can prove 18 no set of facts supporting his claim that would entitle him to relief. Love v. United States, [19] 915 F.2d 1242, 1245 (9th Cir. 1989). In resolving a factual attack, on the other hand, the 20 court does not attach presumptive truthfulness to the allegations in the pleading, and the 21 court may review any evidence outside the pleadings, including affidavits and testimony, 22 to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United 23 States, 850 F.2d 558, 560 (9th Cir. 1988). 24 II. Analysis 25 The Government attacks subject matter jurisdiction both facially and factually. To 26 establish subject matter jurisdiction in a case against the United States, there must be (1) 27 “statutory authority vesting a district court with subject matter jurisdiction,” and (2) “a 28 waiver of sovereign immunity.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008 , 1 1016 (9th Cir. 2007). Even where statutory authority vests the Court with subject matter 2 jurisdiction, the Government must consent to suit. Dunn & Black, P.S. v. United States, [3] 492 F.3d 1084 , 1087–88 (9th Cir. 2007). A waiver of sovereign immunity must be express 4 and unequivocal, and the Court must construe these waivers in favor of the Government. [5] Id. at 1088 . 6 The Federal Tort Claims Act (“FTCA”) provides a limited statutory waiver of the 7 United States’ sovereign immunity for cases like White’s. The FTCA provides that the 8 United States can be sued for tort claims arising from negligent or wrongful acts of federal 9 employees acting within the scope of their employment. 28 U.S.C. § 2679 (b)(1). But for 10 any such claim to survive, a claimant must strictly comply with the FTCA’s prerequisites 11 to filing suit. See Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992). The FTCA 12 requires claimants to file an administrative claim with the appropriate administrative 13 agency before bringing suit. 28 U.S.C. § 2675 ; Brady v. United States, 211 F.3d 499 , 502 14 (9th Cir. 2000); Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). “The 15 requirement of an administrative claim is jurisdictional” and therefore must be “strictly 16 adhered to.” Brady, 211 F.3d at 502 . 17 Here, even construing the Complaint liberally,1 it contains no allegation that White 18 submitted an administrative claim prior to filing suit. Thus, facially, the claim is lacking 19 subject matter jurisdiction. But the Government has also submitted evidence that White 20 cannot amend his complaint to allege compliance because he, in fact, never filed an 21 administrative claim. The Government submitted a declaration from Cynthia Hernandez, 22 Deputy Chief Counsel of the VA, who attested that any administrative claim White 23 submitted would have been recorded in the VA’s computerized database. (Doc. 25-1.) That 24 database contains no record of any administrative claim submitted by White. (Doc. 25-1.) 25 White does not contest this point in his response, nor does he submit any evidence to 26 contradict the Government’s evidence. (See Doc. 30.) In fact, his response appears to admit 27 1 “A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings 28 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations and citations omitted). he did not submit an administrative claim. (See id. at 5.) 2 The Government has demonstrated a lack of subject matter jurisdiction requiring || dismissal. White failed to exhaust his administrative remedies as required by the FTCA. The Court thus lacks subject matter jurisdiction and must dismiss the case. Dismissal 5 || renders White’s motions moot. 6 IT IS ORDERED that the Government’s motion to dismiss (Doc. 25) is 7\| GRANTED. The case is dismissed without prejudice for lack of subject matter 8 || jurisdiction. The Clerk of the Court is directed to terminate all remaining motions as moot 9|| and close this case. 10 Dated this 4th day of December, 2024. [12] 13 {Z, 14 {UO 15 Soe United States District Judge [28] -4-