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Turulski v. Department of Veterans Affairs

United States District Court, D. Delaware

January 8, 2019

MARK T. TURULSKI, SR., Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          Mark T. Turulski, Sr. -Pro Se Plaintiff

          David C. Weiss, United States Attorney, Jennifer Lynne Hall, Assistant United States Attorney, Wilmington, DE - attorneys for Defendants

          MEMORANDUM OPINION

          NOREIRA U.S. DISTRICT JUDGE.

         Pending 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.

         1. On 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 employee. (Id.).

         2. On 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).[1] 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).

         3. On 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).

         4. On December 11, 2018, Defendants moved to dismiss the Amended Complaint for lack of subject matter jurisdiction. (D.I. 22).

         5. As 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.

         6. The 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.

         7. 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).

         8. 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 ...


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