MUNIZ v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

ROLANDO MUNIZ, :

:

Plaintiff, : Civ. No. 22-0816 (NLH) (MJS)

:

v. : OPINION

:

:

UNITED STATES OF AMERICA, :

et al., :

:

Defendants. :

:

______________________________:

APPEARANCES:

Gregory James Irwin, Esq.

Harwood Lloyd LLC

130 Main Street

Hackensack, NJ 07601

Attorneys for Plaintiff

Philip R. Sellinger, United States Attorney

John T. Stinson, Jr., Assistant United States Attorney

Peter Vizcarrondo, Assistant United States Attorney

Office of the United States Attorney

District of New Jersey

401 Market Street, Fourth Floor

Camden, NJ 08101

Attorneys for Defendants

HILLMAN, District Judge

Plaintiff Ronaldo Muniz filed a complaint against the

United States pursuant to the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2671 et seq., and Dr. Abigail Lopez de Lasalle

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). ECF No. 1 (“Compl.”). The

complaint alleged that Defendants violated the Eighth

Amendment’s prohibition on cruel and unusual punishment and were

negligent in treating Plaintiff’s diabetes, resulting in a

diabetic ulcer that led to the amputation of one of his toes.

Id.

Defendants now move for dismissal of the complaint under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No.

22. Plaintiff opposes the motion. ECF No. 29.

For the reasons herein, the Court will grant the motion.

The Eighth Amendment claims will be dismissed with prejudice,

and the FTCA claim will be dismissed without prejudice.

I. BACKGROUND

Plaintiff has been in BOP custody since August 23, 2011.

Compl. at 11. He was diagnosed with diabetes around that time.

Id. ¶ 1. In 2014, Plaintiff “was fully diabetic and was on

medication.” Id. He received Metformin doses between 500 and

1000 mgs as necessary to keep his A1C level under control. Id.

¶ 2. He received “soft shoe” and “bottom bunk” passes from

medical staff at FCI Mariana due to the ulcers on his feet. Id.

¶¶ 3-4.

Plaintiff was placed into FCI Mariana’s special housing

unit (“SHU”) in September 2018. Id. ¶ 6. He was transferred to

FCI Yazoo’s SHU a few months later. Id. Plaintiff states he

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remained in the SHU for about 10 months and was “practically

starved.” Id. ¶ 7. As a result, his A1C level dropped and his

doctor reduced Plaintiff’s Metformin dosage to 500 mgs per day.

Id. Plaintiff was transferred to FCI Fairton, New Jersey, in

July 2019. Id. ¶ 8.

Defendant Lopez de Lasalle, Plaintiff’s doctor at Fairton,

did not conduct a new blood test upon Plaintiff’s arrival at

Fairton. Id. ¶¶ 9-10. Instead, she relied on Plaintiff’s A1C

levels reported in his medical records and stopped Plaintiff’s

Metformin “as in her opinion Plaintiff was not Diabetic.” Id. ¶

10. Plaintiff tried to explain the A1C levels were low because

he had not been eating in the SHU prior to his transfer and

asked to remain on Metformin until a new blood test could be

taken. Id. ¶ 11. Defendant Lopez de Lasalle “said that there

was no point for BOP to spend money for something Plaintiff did

not need.” Id. She also discontinued Plaintiff’s soft shoe and

bottom bunk passes without examining Plaintiff’s feet, again

stating that “she will not let ‘BOP pay for something Plaintiff

did not need.’” Id. ¶ 14.

By November 2019, “Plaintiff’s diabetes skyrocketed and his

diabetic blisters on [his] feet were full of puss and were

painful.” Id. ¶ 16. Plaintiff submitted verbal and written

complaints to medical staff. Id. ¶ 17. He was examined on

November 7, 2019 by medical staff who took a culture and

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prescribed daily wound care. Id. ¶ 18. “However, on at least 6

out of 10 days, medical staff refused the wound care citing

staff shortages and Plaintiff was sent back to the Unit. As a

result Plaintiff’s wound got worse; suppurating 24 hours a day

where Plaintiff was in extreme pain.” Id.

Plaintiff requested medical attention for his wounds on

November 16 and 17, 2019 but was denied care. Id. ¶¶ 19-20.

“[O]n both of these days it was the medical who denied

Plaintiff[‘s] . . . requests for wound care, but the [sic]

medical falsely stated that Plaintiff had denied his scheduled

wound care.” Id. ¶ 20.

On November 18, Plaintiff was examined by Dr. Magan, who

determined that Plaintiff needed to be taken to the emergency

room. Id. ¶ 21. Plaintiff was taken to Inspira County

Hospital, where the treating physicians immediately put

Plaintiff on antibiotics after Plaintiff told them he was

diabetic. Id. ¶ 22. An MRI “revealed that Plaintiff’s diabetic

ulcers and infection had spread to the bone and that his toe had

to be [amputated].” Id. ¶ 23. Plaintiff’s second toe on his

left foot was removed on November 21, 2019 and he was taken back

to Fairton on November 22. ECF No. 29 at 8-10. Defendant Lopez

de Lasalle restarted Plaintiff on Metformin on December 2, 2019.

Compl. ¶ 25.

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Plaintiff sent an administrative tort claim to the BOP’s

Central Office in Washington, DC on October 12, 2021.

Declaration of Jonathan Kerr, ECF No. 22-2 (“Kerr Dec.”) ¶ 3.

The Central Office forward the claim, designated Administrative

Tort Claim Number TRTNER-2022-01040, to the BOP Northeast

Regional Office (“Regional Office”). Id. The Regional Office

rejected the claim on November 22, 2021 because Plaintiff had

not signed the tort claim. ECF No. 22-2 at 11. Plaintiff sent

an amended tort claim on December 28, 2021. Id. at 13. On

January 14, 2022, the Regional Office acknowledged receipt of

the claim as of December 28, 2021 and informed Plaintiff that it

had “six months from the date of receipt to review, consider,

and adjudicate [his] claim.” Id. at 18 (emphasis in original).

Plaintiff submitted his complaint on February 15, 2022.

Compl. He also filed a motion for the appointment of pro bono

counsel. ECF No. 2. The Court permitted Plaintiff’s Bivens

claim against Defendant Lopez de Lasalle and John and Jane Does

to proceed. ECF No. 4. The Court also permitted the FTCA claim

5

against the United States to proceed. Id.1 The Court also

granted Plaintiff’s motion for counsel. Id.2 ECF No. 4.

Defendants now move to dismiss the complaint under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 22.

Plaintiff opposes the motion. ECF No. 29.

II. STANDARD OF REVIEW

A. Standard for Motion to Dismiss Under Rule 12(b)(1)

A challenge to this Court’s subject matter jurisdiction is

determined pursuant to Federal Rule of Civil Procedure 12(b)(1).

Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir.

2000). A motion to dismiss pursuant to Rule 12(b)(1) may attack

subject-matter jurisdiction facially or factually. Davis v.

Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack

does not dispute the facts as alleged in the complaint, id., and

therefore essentially applies the same standard as Rule

12(b)(6), see Severa v. Solvay Specialty Polymers USA, LLC, 524

F. Supp. 3d 381, 389 (D.N.J. Mar. 10, 2021) (citing In re

1 The Court dismissed Plaintiff’s Bivens claim against the United

States and BOP; the FTCA claims against the BOP, Defendant Lopez

de Lasalle, and Defendants Does; and the Rehabilitation Act

claim. ECF No. 4 at 8 (citing 28 U.S.C. §§ 1915(e)(2)(B)(ii)-

(iii)).

2 The Court acknowledges and appreciates the advocacy of Gregory

James Irwin, Esq. of Harwood Lloyd LLC, who accepted appointment

as pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1) and this

Court’s Plan for Appointment of Attorneys in Pro Se Civil

Actions, see App. H of the Local Civil Rules of the District of

New Jersey.

6

Schering Plough Corp. Intron/Temodar Consumer Class Action, 678

F.3d 235, 243 (3d Cir. 2012)). A factual attack, on the other

hand, challenges the allegations by which jurisdiction is

asserted, permitting the Court to weigh evidence outside the

pleadings and placing a burden of proof on Plaintiff to

demonstrate that jurisdiction indeed exists. See Davis, 824

F.3d at 346.

Here, Defendants have asserted a direct factual attack,

arguing that Plaintiff failed to meet the jurisdictional

requirements for bringing tort claims against the United States

prior to filing this lawsuit. Accordingly, the Court may

consider evidence presented by Defendants that is outside the

pleadings to determine whether it has jurisdiction to hear

Plaintiff’s claims against the United States.

B. Standard for Motion to Dismiss Under Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), when

deciding a motion to dismiss, a court accepts all well-pled

facts as true, construes the complaint in the plaintiff’s favor,

and determines “whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)

(internal quotation marks omitted). “Under Federal Rule of

Civil Procedure 8(a)(2), a complaint must contain a ‘short and

plain statement of the claim showing that the pleader is

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entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007)).

To survive a Rule 12(b)(6) challenge, the plaintiff’s

claims must be facially plausible, meaning that the well-pled

facts “allow[] the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. at

678. The allegations must be “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action

will not do.” Twombly, 550 U.S. at 555. Finally, “[i]n

deciding a Rule 12(b)(6) motion, a court must consider only the

complaint, exhibits attached to the complaint, matters of public

record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.” Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

III. DISCUSSION

A. Eighth Amendment Claim

Defendant Lopez de Lasalle moves for the dismissal of the

Eighth Amendment claim against her that alleges she was

deliberately indifferent to Plaintiff’s serious medical need.

ECF No. 22. She argues that the Bivens remedy does not extend

to Plaintiff’s allegations because it is a “new context.” ECF

No. 22-1 at 19. Alternatively, Defendant Lopez de Lasalle

argues she is entitled to qualified immunity and that the

8

statute of limitations for Plaintiff’s claim has expired. Id.

at 30-35.

“In Bivens, the Court held that it had authority to create

‘a cause of action under the Fourth Amendment’ against federal

agents who allegedly manacled the plaintiff and threatened his

family while arresting him for narcotics violations.” Egbert v.

Boule, 596 U.S. 482, 490 (2022) (quoting Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397

(1971)). “Over the following decade, the Court twice again

fashioned new causes of action under the Constitution — first,

for a former congressional staffer’s Fifth Amendment sex-

discrimination claim; and second, for a federal prisoner’s

inadequate-care claim under the Eighth Amendment.” Id. at 490-

91 (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v.

Green, 446 U.S. 14 (1980)). “In the fifty-two years since

Bivens was decided, however, the Supreme Court has pulled back

the reins to what appears to be a full stop and no farther.” Xi

v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023).

In 2017, the Supreme Court concluded “that expanding the

Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar

v. Abbasi, 582 U.S. 120, 135 (2017). See also Hernández v.

Mesa, 140 S. Ct. 735, 742 (2020) (“In both statutory and

constitutional cases, our watchword is caution.”). “These three

cases — Bivens, Davis, and Carlson — represent the only

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instances in which the Court has approved of an implied damages

remedy under the Constitution itself.” Abbasi, 582 U.S. at 131.

“Indeed, in light of the changes to the Court’s general approach

to recognizing implied damages remedies, it is possible that the

analysis in the Court’s three Bivens cases might have been

different if they were decided today.” Id. at 134.

Abbasi “created a funnel through which plaintiffs alleging

constitutional violations by federal officials must pass.”

Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302, at *4 (D.N.J.

Mar. 20, 2018). “First, we ask whether the case presents ‘a new

Bivens context’ — i.e., is it ‘meaningful[ly]’ different from

the three cases in which the Court has implied a damages

action.” Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at

139-40). “If a case does not present a new Bivens context, the

inquiry ends there, and a Bivens remedy is available.” Shorter

v. United States, 12 F.4th 366, 372 (3d Cir. 2021). “[I]f it is

a new context, we ask, second, whether there are special

factors’ indicating that the Judiciary is at least arguably less

equipped than Congress to weigh the costs and benefits of

allowing a damages action to proceed.” Xi, 68 F.4th at 833

(internal quotation marks omitted). The Supreme Court has

“observed that these steps ‘often resolve to a single question:

whether there is any reason to think that Congress might be

better equipped to create a damages remedy’; if so, [the court]

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may not expand Bivens to cover the claim.” Id. (quoting Abbasi,

582 U.S. at 136).

1. Plaintiff’s Claim Presents a New Context

Defendant Lopez de Lasalle argues Plaintiff’s claims are

meaningfully different from Carlson, the most applicable of the

three Bivens remedy cases. “Although Carlson involved an Eighth

Amendment claim, its allegations, which centered on an alleged

deliberate indifference to plaintiff’s acute asthma attack which

resulted in the inmate’s death, do not resemble the claims in

this case.” ECF No. 22-1 at 21. “In contrast to Carlson,

Plaintiff here alleges that Dr. Lopez de Lasalle discontinued

his diabetes medication, soft shoes, and low bunk pass, and,

approximately four months later, he developed a diabetic ulcer

that led to the amputation of his toe.” Id. at 22. Defendant

Lopez de Lasalle argues that Plaintiff’s claims present a new

context because they “focus on a long term and ongoing course of

medical treatment of Plaintiff’s chronic condition” and not

“allegations of extreme deliberate indifference to an acute

medical emergency . . . .” Id.

Plaintiff argues his claims do not present a new context

under Bivens because “[t]he facts herein present the very same

context that Carlson did: a federal inmate alleging that his

Eighth Amendment rights were violated by a prison doctor who

failed to render proper medical care for a chronic medical

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condition.” ECF No. 29 at 16. He further argues that Defendant

Lopez de Lasalle has not presented any “reason why Carlson

should be limited to acute medical emergencies” and that “no

court has ever suggested that a Bivens claim is available only

to an inmate who dies because of an official’s deliberate

refusal to provide life’s necessities, and not to an inmate who

survives mistreatment by the same officials, yet suffers only

serious, irreparable harm.” Id. (emphasis in original).

Plaintiff’s allegations are very similar to Carlson.

There, the Supreme Court recognized a Bivens cause of action

where federal prison officials failed to treat Joseph Jones,

Jr.’s chronic asthma which culminated in a fatal attack.

Carlson v. Green, 446 U.S. 14 (1980). See also Green v.

Carlson, 581 F.2d 669, 670-71 (7th Cir. 1978) (describing facts

alleged in the complaint). Plaintiff alleges federal prison

officials failed to provide adequate medical care for his

chronic diabetic condition. Compl., passim. The plaintiff in

Carlson alleged prison officials did not give Jones proper

medication or other treatments that had been prescribed to him

by a physician. Green, 581 F.2d at 671. Plaintiff alleges

Defendant Lopez de Lasalle discontinued his Metformin and other

treatments, causing the ulcer on his toe and subsequent

amputation. Compl. ¶¶ 9-14. Both asthma and diabetes are

chronic medical conditions that may be fatal if left untreated.

12

However, these similarities are not enough post-Egbert. Egbert,

596 U.S. at 501 (“[A] plaintiff cannot justify a Bivens

extension based on ‘parallel circumstances’ with . . . Carlson

unless he also satisfies the ‘analytic framework’ prescribed by

the last four decades of intervening case law.”).

“[T]he Supreme Court ha[s] made clear that the category of

‘new contexts’ is ‘broad,’ and this threshold test is ‘easily

satisfied.’” Xi v. Haugen, 68 F.4th 824, 833 (3d Cir. 2023)

(quoting Hernández v. Mesa, 140 S. Ct. 735, 743 (2020); Abbasi,

582 U.S. at 139). “A context may be regarded as new if it is

different in any ‘meaningful way’ from the three contexts where

the Court has recognized a Bivens remedy, and even ‘a modest

extension is still an extension.’” Id. (quoting Abbasi, 582

U.S. at 139, 142). “[T]he Carlson Court extended an implied

cause of action for money damages pursuant to Bivens where the

alleged deliberate indifference of prison officials was most

serious; it resulted in a fatality of a prisoner.” Peguero v.

Quay, No. 1:22-CV-00057, 2023 WL 2410882, at *10 (M.D. Pa. Mar.

8, 2023) (declining to extend Bivens remedy to claim of chronic

low back pain). See also Washington v. Fed. Bureau of Prisons,

No. CV 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26,

2022) (“Plaintiff’s Bivens claims do not involve a medical

emergency, as did Carlson, but rather focus on a long term and

ongoing course of medical treatment of Plaintiff’s chronic, non-

13

fatal condition.”). Although Plaintiff “may have been injured,

the severity of his injuries have not proven to be fatal.”

Hurst v. Dayton, No. 22-CV-00171-DKW-RT, 2023 WL 2526460, at *5

(D. Haw. Mar. 15, 2023) (declining to extend Bivens remedy to

medical conditions brought on by prison riot), appeal filed, No.

23-15523 (9th Cir. Apr. 5, 2023).

While the Court does not minimize Plaintiff’s injuries,

they are meaningfully different from the medical emergency faced

by the inmate in Carlson that ultimately resulted in Jones’

death. See Dongarra v. Smith, 27 F.4th 174, 180–81 (3d Cir.

2022) (“Carlson extended Bivens to remedy prison officers’

failure to give medical assistance. But there, the prisoner

died because of the officers’ neglect. Put differently, the

risk that the prison officer ignored (death from not treating

the prisoner’s chronic asthma) in fact resulted.”). “This

difference is significant for multiple reasons, including that

administrative and injunctive relief would have a completely

different application to Plaintiff’s claims than to the claims

in Carlson . . . .” Washington, 2022 WL 3701577, at *5.

Therefore, Plaintiff’s claim presents a new Bivens context, and

the Court must proceed to the second step of review.

2. Special Factors Counsel Against Extending Bivens

Step two requires the Court to consider “whether special

factors counsel hesitation in extending a Bivens remedy.” Xi,

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68 F.4th at 836 (cleaned up). “The Bivens inquiry does not

invite federal courts to independently assess the costs and

benefits of implying a cause of action. A court faces only one

question: whether there is any rational reason (even one) to

think that Congress is better suited to ‘weigh the costs and

benefits of allowing a damages action to proceed.’” Egbert, 596

U.S. at 496 (quoting Abbasi, 582 U.S. at 136). “If there is

even a single ‘reason to pause before applying Bivens in a new

context,’ a court may not recognize a Bivens remedy.” Id. at

492 (quoting Hernández, 140 S. Ct. at 743). See also Graber v.

Doe II, 59 F.4th 603, 609 (3d Cir. 2023).

The Supreme Court has held that “a court may not fashion a

Bivens remedy if Congress already has provided, or has

authorized the Executive to provide, ‘an alternative remedial

structure.’” Egbert, 596 U.S. at 495 (quoting Abbasi, 582 U.S.

at 137). The Supreme Court has held that the BOP’s

administrative remedy program satisfies this requirement. Id.

at 497 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74

(2001)).3 See also Bulger v. Hurwitz, 62 F.4th 127, 140-41 (4th

Cir. 2023) (finding that BOP’s administrative remedy is a

sufficient “alternative remedial structure” in special factors

3 Plaintiff used the administrative remedy program, and the BOP

denied his requests for an investigation into his medical care.

ECF No. 1-2 at 82.

15

analysis); Silva v. United States, 45 F.4th 1134, 1141 (10th

Cir. 2022) (same). It is irrelevant that monetary damages are

not available through the BOP’s program. “So long as Congress

or the Executive has created a remedial process that it finds

sufficient to secure an adequate level of deterrence, the courts

cannot second-guess that calibration by superimposing a Bivens

remedy.” Egbert, 596 U.S. at 498. The Court “recognize[s] this

remedial scheme might prove to be cold comfort to [Plaintiff],

who seeks an adversarial process and monetary damages, but the

Supreme Court has declared that the government’s procedures need

not be as effective as an individual damages remedy to foreclose

Bivens relief.” Barry v. Anderson, et al., No. 22-3098, 2023 WL

8449246, at *4 (3d Cir. Dec. 6, 2023).

Accordingly, the Court must dismiss Plaintiff’s

constitutional claims against Defendant Lopez de Lasalle as

Bivens does not afford him a remedy absent Congressional action.

Because Plaintiff’s Eighth Amendment claims may not proceed

under Bivens, the Court will dismiss the claims against the John

and Jane Doe defendants, who have not been identified or served,

as well.4

4 The Court need not address Defendant Lopez de Lasalle’s

qualified immunity or statute of limitations arguments since it

is dismissing the Eighth Amendment claims for lack of a Bivens

remedy.

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B. Federal Tort Claims Act

Defendant United States argues the Court lacks jurisdiction

over Plaintiff’s FTCA claims as Plaintiff did not exhaust his

administrative remedies before filing suit. ECF No. 22-1 at 35.

Plaintiff responds that “[t]he purpose of the FTCA claim

requirement was fulfilled” when the BOP’s Regional Office

received the unsigned notice of Plaintiff’s claim. ECF No. 29

at 35. “If the agency intended to negotiate a settlement with

Plaintiff Muniz, it had both its allegations and monetary demand

at that point.” Id.

“The FTCA waives sovereign immunity and grants district

courts jurisdiction over tort claims against the United States

‘under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.’” Gould

Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000)

(quoting 28 U.S.C. § 1346(b)(1)) (emphasis omitted), modified on

other grounds by Simon v. United States, 341 F.3d 193 (3d Cir.

2003). This waiver of sovereign immunity is limited, however.

“Because the Federal Tort Claims Act constitutes a waiver of

sovereign immunity, the Act’s established procedures have been

strictly construed.” Livera v. First Nat’l State Bank of N.J.,

879 F.2d 1186, 1194 (3d Cir. 1989).

17

The FTCA “provides that an ‘action shall not be instituted

upon a claim against the United States for money damages’ unless

the claimant has first exhausted his administrative remedies.”

McNeil v. United States, 508 U.S. 106, 107 (1993) (quoting 28

U.S.C. § 2675(a)). To exhaust his administrative remedies, a

plaintiff suing under the FTCA must present the offending agency

with notice of the claim, including a “sum certain” demand for

monetary damages. White-Squire v. U.S. Postal Serv., 592 F.3d

453, 457 (3d Cir. 2010). Exhaustion occurs when either the

agency denies the claim or six months have passed without a

written denial of the claim. 28 U.S.C. § 2675(a). “This

requirement is jurisdictional and cannot be waived.” Shelton v.

Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015). The exhaustion

requirement applies to all FTCA plaintiffs regardless of their

pro se or incarcerated status. Id.; Wadhwa v. Nicholson, 367 F.

App’x 322, 325 n.5 (3d Cir. 2010).

The BOP Regional Office received Administrative Tort Claim

Number TRTNER-2022-01040 on December 28, 2021. ECF No. 22-2 at

18. The claim receipt sent to Plaintiff informed him that the

Regional Office had “six months from the date of receipt to

review, consider, and adjudicate [his] claim.” Id. (emphasis in

original). This review period would have ended June 28, 2022;

however, Plaintiff filed this complaint on February 15, 2022.

Compl., passim. Plaintiff did not complete the exhaustion

18

process before filing the complaint, so the Court lacks

jurisdiction over Plaintiff’s FTCA claim.

The fact that the six-month period expired and the

exhaustion process was completed during the pendency of this

lawsuit does not cure the jurisdictional error.5 “McNeil

clarified that administrative exhaustion must be complete before

instituting suit, and that this procedural rule is a requirement

to which all litigants must adhere.” Wadhwa, 367 F. App’x at

325 n.5 (emphasis in original). “[A]dministrative exhaustion

must be complete before a party may institute a civil action in

District Court under the FTCA.” Id. at 325 (emphasis in

original). “[T]he subsequent filing and denial of a claim after

suit has been commenced does not overcome the failure to exhaust

administrative remedies and premature filing of the complaint.”

Priovolos v. Fed. Bureau of Investigation, 686 F. App’x 150, 152

(3d Cir. 2017). See also McNeil, 508 U.S. at 111–12 (holding

that a court is without jurisdiction to rule on a prematurely

filed action even if an agency denies the related administrative

claim soon after the federal lawsuit is filed); Accolla v. U.S.

Gov’t, 369 F. App’x 408, 410 (3d Cir. 2010) (per curiam)

(holding that “because [plaintiff] filed his FTCA action in

federal court before” he filed an amendment with the agency “and

5 As of June 6, 2023, “Plaintiff Muniz has not received a final

decision on his claim.” ECF No. 29 at 35.

19

before the expiration of the appropriate six month period, the

District Court was without jurisdiction to rule on the FTCA

claim”).

The Court lacks jurisdiction over Plaintiff’s FTCA claims

because Plaintiff initiated this lawsuit before the FTCA

exhaustion process was complete. The Court will dismiss the

FTCA claim without prejudice because the Supreme Court has held

that the filing dates under the FTCA are not jurisdictional,

unlike the exhaustion requirement, and are subject to equitable

tolling. United States v. Kwai Fun Wong, 575 U.S. 402, 410-12

(2015).6

IV. CONCLUSION

For the reasons set forth above, the Court will grant

Defendants’ motion to dismiss.

An appropriate Order follows.

Dated: December 7, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

6 The Court expresses no opinion as to whether Plaintiff would be

entitled to equitable tolling in the event he chooses to refile

his FTCA claim.

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