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
NOREIRA U.S. DISTRICT JUDGE.
before the Court is the motion (D.I. 22) of Defendant the
Department of Veterans Affairs ("VA") to dismiss
Plaintiff Mark T. Turulski, Sr.'s Amended Complaint (D.I.
21) for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1). For the foregoing reasons, the Court
will grant Defendant's motion.
May 23, 2018, Plaintiff, Mark T. Turulski ("Plaintiff),
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 for personal injury
resulting from the alleged wrongful act of a federal
July 25, 2018, Defendant moved to dismiss the Complaint
pursuant to Rule 12(b)(1) because Plaintiff failed to exhaust
his administrative remedies as required under the Federal
Tort Claims Act ("FTC A"). (D.I.
14at2-3). On October 31, 2018, the Court granted the
motion, without prejudice, finding that Plaintiff failed to
allege that he had exhausted his claims before filing suit.
(D.I. 19, 20).
November 26, 2019, Mr. Turulski filed as a document titled
"Amendments" which was docketed as an Amended
Complaint. (D.I. 21). In the Amended Complaint, he alleges
"[t]o wit, the plaintiff did file a complaint with the
VA and send (sic) copies of this case to all the appropriate
agencies including the secretary of VA." (D.I. 21 at 1).
December 11, 2018, Defendants moved to dismiss the Amended
Complaint for lack of subject matter jurisdiction. (D.I. 22).
the Court noted in its prior opinion (D.I. 19), the 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,
Plaintiff seeks redress for the alleged wrongful acts of
"Sgt. Custodio" while Plaintiff was in VA police
custody. Thus, his claims fall under the FTCA.
Amended Complaint - as did the original Complaint -
improperly names the VA as defendant rather than the United
States. Priovolos v. FBI, 632 Fed.Appx. 58, 60 (3d
Cir. 2015). As the Third Circuit has recognized, "this
pleading defect can be remedied" by the submission of a
new or an amended complaint, if appropriate. Id. To
date, however, Plaintiff has not remedied this defect and has
failed to name the proper party - the United States - as a
defendant. Thus, his Amended Complaint will be dismissed for
failure to name the correct party as defendant.
Additionally, before bringing an FTCA claim in court, a
claimant must exhaust his administrative remedies:
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 mail.
28 U.S.C. § 2675(a) (emphasis added).
Exhaustion of administrative remedies under the FTC A
"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 ...