United States District Court, D. Delaware
MARK T. TURULSKI, SR., Plaintiff,
DEPARTMENT OF VETERANS AFFAIRS, Defendant.
T. Turulski, Sr. - Pro Se Plaintiff
C. Weiss, United States Attorney, Jennifer Lynne Hall,
Assistant United States Attorney, Wilmington, DE - attorneys
NOREIKA, U.S. DISTRICT JUDGE
before the Court is the motion (D.I. 14) of Defendant the
Department of Veterans Affairs ("VA") to dismiss
Plaintiff Mark T. Turulski, Sr.'s complaint (D.I. 2) for
lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1). For the forthgoing reasons, the Court will grant
May 23, 2018, Plaintiff, Mark T. Turulski, Sr., acting
pro se, filed a complaint against the VA alleging
that on September 8, 2016, he was assaulted and physically
injured by "Sgt. Custodio" while in the custody of
VA police. (Id. at 4-5). Plaintiff alleges that the
injuries caused him "pain, suffering psychological,
drama ... and perhaps most importantly loss of fiance
(sic)." (Id. at 7). Plaintiff seeks damages in
the amount of $7, 000, 000 from the government for personal
injury resulting from the alleged wrongful act of a federal
Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(b), 2679(b)(1), "is the exclusive remedy against
the United States for certain negligent or wrongful acts of
federal employees acting within the scope of their
employment." Priovolos v. Federal Bureau of
Investigation, 686 Fed.Appx. 150, 152 (3d Cir. 2017)
(citing 28 U.S.C. § 2679(b)(1); Aliota v.
Graham, 984 F.2d 1350, 1355 (3d Cir. 1993)). Here,
because Plaintiff seeks redress for the alleged wrongful acts
of "Sgt. Custodio" while he was in VA police
custody, his claims fall squarely under the
FTCA operates as a limited exception to the United
States' sovereign immunity from suit for certain tort
claims. See Abulkhair v. Bush, 413 Fed. App'x.
502, 506 (3d Cir. 2011). Before bringing an FTCA claim in
court, however, a claimant must exhaust administrative
An action shall not be instituted . . . against the United
States for money damages for injury ... 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
28 U.S.C. § 2675(a) (emphasis added).
Exhaustion of administrative remedies under the FTCA "is
jurisdictional and cannot be waived." Bialowas v.
United States, 443 F.2d 1047, 1049 (3d Cir. 1971)
(citations omitted). Thus, "a court does not have
jurisdiction before administrative remedies have been
exhausted, and a court must dismiss any action that is
initiated prematurely." Wilder v. Luzinski, 123
F.Supp.2d 312, 313 (E.D. Pa. 2000) (citing McNeil v.
United States, 508 U.S. 106, 111 (1993)); see also
Wujick v. Dale & Dale, 43 F.3d 790, 793-94 (3d Cir.
1994) (noting that administrative exhaustion under FTCA is
mandatory and that the Supreme Court "firmly
rejected" the "no harm, no foul" reasoning)).
"[B]ecause the FTCA is a waiver of sovereign immunity by
the United States, its requirements are strictly
construed." Abulkhair, 413 Fed. App'x. at
506 (citing White-Squire v. USPS, 592 F.3d 453, 456
(3d Cir. 2010)).
Here, Defendant argues that the Plaintiffs claims must be
dismissed pursuant to Rule 12(b)(1) because he failed to
exhaust his administrative remedies as required under the
FTCA. (D.I. 14at2-3).
complaint challenged on the basis of Rule 12(b)(1) may be
attacked on its face or in fact. Mortensen v. First
Federal Sav. & Loan Ass'n 549 F.2d 884, 891
(3dCir. 1977). When the basis of a 12(b)(1) challenge is
factual, "the trial court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case." Id. (adding "the plaintiff will
have the burden of proof that jurisdiction does in fact
exist"). Here, Defendant's motion is supported by a
sworn Declaration of Lisa M. Wolfe, Staff Attorney,
Department of Veterans Affairs, Office of General Counsel,
Torts Law Group. (D.I. 14, Ex. A, ¶ 1 (the
"Declaration")). The motion "therefore must be
construed as a factual, rather than a facial attack on the
Court's subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1)." Int'l Ass'n of Machinists &
Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d 700,
711 (3d Cir. 1982).
evaluating Defendant's motion and the existence of
subject matter jurisdiction, the Court considers the
Declaration along with documentation submitted by Plaintiff
in relation to the instant motion.
the Declaration, Ms. Wolfe explains her familiarity with the
official records of administrative claims maintained by the
VA, as well as with the system by which those records are
maintained. (Id. at ¶¶ 2-6). Ms. Wolfe
states that she caused a search of the official records of
administrative claims submitted to the VA and that ...