# Ambriz v. United States of America

> District Court, N.D. Texas · July 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10448645

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10448645

## How later opinions describe it (automated extraction)

- explaining that “§ 233(a) preempts a Bivens claim and provides that a plaintiff’s sole remedy is a claim brought under the [FTCA]”
- finding that a district court was required to dismiss a complaint asserting claims under the FTCA that was filed before the federal agency had sent the Plaintiff written notice of denial of administrative claim
- holding that failure to completely exhaust administrative remedies prior to filing an FTCA claim is a jurisdictional defect that cannot be cured by administrative exhaustion after suit is filed

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

HUGO AMBRIZ, §
§
Plaintiff, §
v. § Civil Action No. 4:19-cv-474-O
§
UNITED STATES OF AMERICA, et al., §
§
Defendants. §

OPINION and ORDER

This case was filed by Bureau of Prisons’ (“BOP”) inmate/plaintiff Hugo Ambriz
(“Ambriz”) asserting claims against the United States of America and against Raul Leija (“Leija”),
a Public Health Service Officer then assigned to Federal Medical Center (“FMC”)-Fort Worth as
a physical therapist. Compl. 1-2, ECF No. 1. Pending is a motion to dismiss for lack of jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) by defendant United States (“USA”) and an
appendix thereto (ECF Nos. 13, 14), a response filed by Ambriz (ECF No. 19), and the USA’s
reply (ECF No. 20). Also pending is a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) by defendant Raul Leija (“Leija”) (ECF No. 16) and an appendix thereto (ECF No. 17).
Ambriz did not respond to Leija’s motion to dismiss. After considering the relief sought by
Ambriz, the record, the briefing and the applicable law, the Court finds that the motions to dismiss
must be GRANTED.
I. BACKGROUND/COMPLAINT
Ambriz is a federal inmate at FMC-Fort Worth. Compl. 2, ECF No. 1. As noted, he filed
this civil action on June 17, 2019, naming as defendants the United States and Leija. Id. Ambriz
identifies the Federal Tort Claims Act (“FTCA”) as the basis for his claim against the United States
and generally alleges he received inadequate medical care at FMC-Fort Worth. Id. at 8-14. As
1
required by the FTCA, Ambriz filed an administrative claim with the BOP prior to filing this
lawsuit. USA App. 3 (Declaration of Brenda Victor ¶¶ 1-6), 4-9, ECF No. 14.1 After filing the
administrative claim on May 6, 2019, Ambriz waited only a little over a month before filing suit,
on June 17, 2019. Compl. 1, ECF No. 1. At the time suit was filed, the BOP had not issued any
decision on the administrative claim. USA App. 3 (Declaration of Brenda Victor ¶ 6), ECF No.
14. The United States now moves to dismiss the complaint for lack of jurisdiction.
As to defendant Leija, Ambriz has sued him pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Ambriz generally alleges that Leija,
while working as a physical therapist at FMC-Fort Worth, improperly examined and treated him
for a pre-existing shrapnel injury to his right foot and made erroneous entries in Ambriz’s medical

records that caused injury to Ambriz. Compl. 3-6, 12-13, ECF No. 1. Leija, however, moves to
dismiss on the basis that he is entitled to absolute immunity from Ambriz’s suit. Leija Mot. to
Dismiss, ECF Nos. 1-4.
II. DEFENDANT USA’S MOTION TO DISMISS
A. Law Applicable to Motions under Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) requires dismissal when a federal district court
does not have the right to exercise its limited jurisdiction over the subject matter presented in the
complaint. “Federal courts must resolve questions of jurisdiction before proceeding to the merits.”
Ashford v. United States, 463 F. App’x 387, 391-92 (5th Cir. 2012) (citing Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 101 (1998), USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 283
& n.6 (5th Cir. 2011), and Jasper v. FEMA, 414 F. App’x 649, 651 (5th Cir. 2011)). “It is
incumbent on all federal courts to dismiss an action whenever it appears that subject matter

1 The Court may consider materials outside the pleadings in connection with the motions to dismiss
under Rule 12(b)(1). See text infra.
2
jurisdiction is lacking. This is the first principle of federal jurisdiction.” Stockman v. FEC, 138
F.3d 144, 151 (5th Cir. 1998) (quotation and citation omitted). “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff
constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001) (citations omitted). The Court may consider matters outside the
pleadings and attachments thereto in resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1). See Vinzant v. United States, No. 2:06-cv-10561, 2010 WL
1857277, at *3 (E.D. La. May 7, 2010) (FTCA case) (citing Ambraco, Inc. v. Bossclip B.V., 570
F.3d 233, 237-38 (5th Cir. 2009)); see also Allen v. Schafer, No. 4:08-cv-120-SA-DAS, 2009 WL
2245220, at *2 (N.D. Miss. July 27, 2009) (“It is well settled that on a 12(b)(1) motion the court

may go outside the pleadings and consider additional facts, whether contested or not and may even
resolve issues of contested facts”) (citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986)).
B. Law Applicable to Exhaustion of Administrative Review
The FTCA provides that the jurisdiction authorized under 28 U.S.C. § 1346(b) for civil
actions for loss of property, personal injury, or death caused by the negligent or wrongful act or
omission of any employee of the government while acting within the scope of his employment, is
an exclusive remedy against the United States. 28 U.S.C. § 1346(b) (West 2019); 28 U.S.C. §
2679(b)(1) (West 2006). The United States is immune from suit unless it consents to be sued, and
the terms of such consent, or waiver of its sovereign immunity, “define [the] Court’s jurisdiction
to entertain the suit.” United States v. Testan, 424 U.S. 392, 399 (1976). The Supreme Court has
recognized that “limitations and conditions upon which the Government consents to be sued must
be strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S.
156, 161 (1981) (citations omitted). The requirement of exhaustion of administrative review “is a
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jurisdictional requisite to the filing of an action under the FTCA” and cannot be waived. Gregory
v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981) (citations omitted).
This Court’s subject matter jurisdiction over an action against the United States under the
FTCA is thus expressly conditioned upon compliance with the language of 28 U.S.C. § 2675(a),
which requires that a claimant “shall have first presented the claim to the appropriate federal
agency,” and either obtain a written denial of the claim or wait six months after its filing at the
appropriate agency to deem the agency decision as a final denial. See 28 U.S.C. § 2675(a) (West
2006). “Even though the requirements of § 2675 are minimal, an FTCA claimant must nonetheless
provide facts sufficient to allow his claim to be investigated and must do so in a timely manner.”
Cook v. United States on behalf of U.S. Dep’t of Labor, 978 F.2d 164, 166 (5th Cir. 1992). The

statute provides in detail:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office of employment, unless the claimant shall have
been finally denied by the agency in writing and sent by certified or registered mail.
The failure of an agency to make a final disposition of a claim within six months
after it is filed shall, at the option of the claimant any time thereafter, be deemed a
final decision of the claim for purposes of this section.

28 U.S.C. § 2675(a) (emphasis added).
Thus, the claimant may not bring suit in district court on the claim until the claim has been
finally denied by the agency in writing, or the agency has failed to adjudicate the claim within six
months of its filing. 28 U.S.C. § 2401(a) (West 2019); 28 U.S.C. § 2675(a); see Price v. United
States, 63 F.3d 46 (5th Cir. 1995); see also Reynolds v. United States, 748 F.2d 291 (5th Cir 1984)
(finding that a district court was required to dismiss a complaint asserting claims under the FTCA
that was filed before the federal agency had sent the Plaintiff written notice of denial of
administrative claim).
4
The Supreme Court recognized that strict compliance with the administrative exhaustion
procedures outlined in the FTCA is required of a plaintiff who institutes an action against the
United States. See McNeil v. United States, 508 U.S. 106, 112 (1993) (holding that failure to
completely exhaust administrative remedies prior to filing an FTCA claim is a jurisdictional defect
that cannot be cured by administrative exhaustion after suit is filed). In McNeil, the Supreme Court
so held even though the plaintiff was a prisoner proceeding pro se and the dismissal of the
compliant left him with no recourse against the United States, given that his six-month window of
opportunity to file a new FTCA case had already elapsed. Id. at 112-13 (“[W]e have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”). As one district court has explained, “[a]lthough

the result is a harsh one, it is in keeping with the well-established principle that waivers of
immunity on behalf of the United States are given a very a narrow construction.” Michalik v.
Hermann, et al., No. Civ. A. 99-3496, 2002 WL 1870054, at * 3 (E.D. La. Aug. 12, 2002).
C. Analysis
In the instant case, there is no dispute that Ambriz filed an administrative claim with the
BOP pursuant to the FTCA. Compl. 8-9, ECF No. 1; USA App. 3 (Declaration of Brenda Victor),
ECF No. 14. The administrative claim was filed on May 6, 2019,2 and Ambriz then filed this suit
only slightly more than a month later (June 17, 2019), without first receiving a decision on the

2The BOP received the administrative claim on May 6, 2019. USA App. 3, 5, 9, ECF No. 14.
Ambriz recites that the administrative claim was filed on April 29, 2019, apparently referring to the date he
signed the claim and put it in the mail. Compl. 8, ECF No. 1. The applicable date for the filing of an
administrative claim is the date the claim is received by the federal agency, i.e., there is no “mailbox” rule
for claims under the FTCA. See Iracheta v. United States, No. B:14-135, 2015 WL 13559948, at *8 (S.D.
Tex. June 19, 2015) (citing McLaurin v. United States, 392 F.3d 774, 780 (5th Cir. 2004)). Any question
of whether the administrative claim was considered “filed” on April 29, 2019 or instead on May 6, 2019, is
immaterial because Ambriz’s suit was premature under either possible date.
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claim from the BOP. Id. Ambriz’s failure to either receive a final denial of the claim or to wait the
statutorily prescribed six-month period before filing suit, means that jurisdiction is lacking for any
claim against the United States in this action. See Price, 69 F.3d at 54; see also Egger v. United
States, No. EP-13-cv-343-KC, 2013 WL 6813914, at *3 (W.D. Tex. Dec. 23, 2013) (dismissing
an FTCA suit for lack of jurisdiction where “Plaintiff brought suit before obtaining a final denial
from the [agency] and before 28 U.S.C. § 2675(a)’s six-month waiting period expired”).
Indeed, Ambriz appears to concede in his complaint that he filed suit prematurely under
the FTCA, because he asks the Court to place his claim against the United States “in abeyance and
suspense until the due date for the tort claim response arrives, or, until the claim is answered and
denied.” Compl. 10, ECF No. 14. That is not a permissible option, however, for “curing” the

jurisdictional defect created by Ambriz’s premature filing. As the Fifth Circuit has explained, “[a]n
action that is filed before the expiration of the six-month waiting period, and is thus untimely,
cannot become timely by the passage of time after the complaint is filed.” Price, 69 F.3d at 54
(citing McNeil, 508 U.S. at 106).
Ambriz also asserts that the Federal Tort Claims Act’s administrative process “is an
exercise in futility.” Compl. 9-10, ECF No. 1. But this argument also fails, because “the FTCA
does not admit a futility exception to its exhaustion requirement.” In re Complaint of Ingram Barge
Co., 351 F. App’x 842, 843 (5th Cir. 2009) (citing 28 U.S.C. § 2675(a); Gregory, 634 F.2d at 203-
04).
In his response to the USA’s motion to dismiss, Ambriz does not dispute that he filed this
action prior to receiving a decision form the BOP or allowing six months to elapse, but he suggests
that his noncompliance with the statutory prerequisites for filing an FTCA suit should be excused
or overlooked. Resp. 3-6, ECF No. 19. But Ambriz provides no legal authority in support of that
6
outcome and, as noted, the FTCA requirements at issue are jurisdictional and cannot be waived.
In support of his response, Ambriz first states that the United States omitted “material
relevant facts” from its motion by not telling the Court that it purportedly “willfully failed to
respond to the tort claim on or before November 5, 2019,” (i.e., six months after the administrative
tort claim was filed), which purportedly resulted in “‘futility’ more or less predicted by Plaintiff
in the Complaint.” Resp. 3, ECF No. 19. This argument lacks merit. Ambriz filed this action on
June 17, 2019, well before the six-month period ended in November 2019. Thus, anything that
happened with respect to the administrative tort claim after June 17, 2019, is irrelevant to the
question of whether jurisdiction existed in this Court at the time Ambriz filed suit on June 17,
2019. And as explained above, no jurisdiction existed, because Ambriz had neither received any

written denial of his administrative claim nor waited the statutorily-mandated six months.
Ambriz also claims that the United States “‘laid behind the log’ and was inexcusably tardy
in filing its motion” to dismiss in response to his Complaint. Resp. 4, ECF No. 19. The record does
not support this allegation. The U.S. Attorney’s Office was served with the summons for the United
States and a copy of the Complaint on November 26, 2019. Return of Service 1, ECF No. 10. The
United States therefore had a January 27, 2020 deadline to answer or otherwise respond to the
complaint. See Fed. R. Civ. P. 12(a)(2) (60-day deadline for the United States to respond to a
complaint after service on the U.S. Attorney); see also Fed. R. Civ. P. 6(a) (deadline extended to
next business day if the deadline would otherwise fall on a weekend). Accordingly, the United
States timely responded to Ambriz’s complaint through the filing of a motion to dismiss on January
27, 2020. Mot. to Dismiss, ECF No. 13.
Ambriz next argues that dismissal at this stage “would serve no legitimate purpose or
reason.” Resp. 4, ECF No. 19. The premise of this argument appears to be Ambriz’s mistaken
belief that the United States “waited an extraordinary period of time to raise its [28 U.S.C.] §
2675(a) issue.” Resp. 4-5, ECF No. 19. As noted above, Ambriz is wrong to claim that there was
any delay; instead, the United States raised the issue in its very first filing in response to Ambriz’s
suit. Moreover, because the issue is jurisdictional, it could be raised at any time. See Fed. R. Civ.
P. 12(h)(3).
The Court finds no merit to Ambriz’s argument that not allowing his jurisdictionally
improper claim to proceed would somehow “cause . . . great expense and extend the litigation
needlessly.” Resp. 5, ECF No. 19. The issue is jurisdictional, however, so it would not be
permissible to waive Ambriz’s noncompliance with the FTCA even if considerations of expense

and efficiency were in his favor. Regardless, these considerations do not favor Ambriz. The
Supreme Court has made clear that because the FTCA “governs the processing of a vast multitude
of claims,” the “interest in orderly administration of this body of litigation is best served by
adherence to the straightforward statutory command,” which requires that a lawsuit not be filed
prior to the issuance of the agency’s decision or the passage of six months. See McNeil, 508 U.S.
at 112. The Supreme Court could not have been clearer in McNeil: “The FTCA bars claimants
from bringing suit in federal court until they have exhausted their administrative remedies.
Because petitioner failed to heed that clear statutory command, the District Court properly
dismissed his suit.” Id. at 113. In sum, because Ambriz filed suit prematurely under the FTCA,

jurisdiction is lacking under that statute, and the complaint should be dismissed as against the
United States.
III. DEFENDANT LEIJA’S MOTION TO DISMISS
A. Leija’s Motion under Rule 12(b)(1)
Defendant Leija moves to dismiss on the basis of absolute immunity. Leija recites that he
was, at the time of the events made the basis of Ambriz’s complaint, a commissioned officer of
the United States Public Health Service and, as such, is immune from claims arising from his
official duties. Absolute immunity functions as a jurisdictional bar, and thus a dismissal on that
basis is proper under Federal Rule of Civil Procedure 12(b)(1). See Villanueva v. United States,
No. EP-19-cv-232-FM-ATB, 2020 WL 1234943, at *4 (W.D. Tex. Mar. 13, 2020) (“Thus, where
an official is entitled to absolute immunity, that immunity bars the court’s jurisdiction as to claims
against that official so that dismissal is warranted pursuant to Rule 12(b)(1)”) (quoting Uptergrove
v. United States, No.CV F-08-0303 AWISMS, 2008 WL 2413182, at *5 (E.D. Cal. June 12, 2008)
(citation omitted)); Evans v. Suter, No. H-07-1557, 2007 WL 1888308, at *3 (S.D. Tex. June 29,
2007).
B. Analysis of Leija’s Motion to Dismiss

The Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), recognized an implied private cause of action for certain alleged
constitutional violations by federal officials. Leija argues, however, that as he is an officer of the
Public Health Service, 42 U.S.C. § 233(a) bars him from being subject to suit under Bivens. Leija
Mot. Dismiss 2, ECF No. 16. Section 233(a) provides:
The remedy against the United States provided by sections 1346(b) and 2672 of
Title 28, or by alternative benefits provided by the United States where the
availability of such benefits precludes a remedy under section 1346(b) of Title 28,
for damage for personal injury, including death, resulting from the performance of
medical, surgical, dental, or related functions, including the conduct of clinical
studies or investigation, by any commissioned officer or employee of the Public
Health Service while acting within the scope of his office or employment, shall be
exclusive of any other civil action or proceeding by reason of the same subject-
matter against the officer or employee (or his estate) whose act or omission gave
rise to the claim.

42 U.S.C.A. § 233(a) (West Supp. 2020).
In Hui v. Castaneda, 559 U.S. 799 (2010), the Supreme Court determined that this language
“grants absolute immunity to PHS officers and employees for actions arising out of the
performance of medical or related functions within the scope of their employment by barring all
actions against them for such conduct.” Castaneda, 559 U.S. at 806. The Supreme Court also stated
that “[b]ased on the plain language of § 233(a), we conclude that PHS officers and employees are
not personally subject to Bivens actions for harms arising out of such conduct.” Id. at 802; see also
Jenkins v. United States, 733 F. App’x 218, 219 (5th Cir. 2018) (affirming dismissal of Bivens
claim because the defendant’s “undisputed status as an employee of the U.S. Public Health Service
afforded him absolute immunity”); Walker v. Reese, 364 F. App’x 872, 875 n.3 (5th Cir. 2010)
(explaining that “§ 233(a) preempts a Bivens claim and provides that a plaintiff’s sole remedy is a

claim brought under the [FTCA]”); Dorsey v. Relf, No. 4:12-cv-021-A, 2012 WL 3000219, at *1-
2 (N.D. Tex. July 20, 2012).
Defendant Leija provided a declaration in which he attests that, since March 2013, he has
been a commissioned officer of the United States Public Health Service, and since June 2016,
assigned to the BOP’s FMC-Fort Worth facility to serve as a licensed physical therapist. Leija
App. 3 (Leija Declaration ¶ 1), ECF No. 17. He also states that any involvement he may have had
regarding the acts alleged in the Complaint would have occurred within the scope of his official
duties as a USPHS commissioned officer detailed to serve as a physical therapist at FMC-Fort
Worth, including with respect to any matters relating to Ambriz’s medical care and treatment. Id.

at ¶ 3. Thus, 42 U.S.C. § 233(a) applies to give Leija absolute immunity from Ambriz’s claims.
In this regard, Ambriz complains of Leija’s alleged acts or omissions that clearly fall within
the scope of Leija’s official duties as a physical therapist. For example, Ambriz alleges that Leija’s
notes of a physical examination of Ambriz—performed as a consultation at the request of another
medical professional—were not accurate, including Leija’s statement that he believed Ambriz was
feigning an illness. Compl. 3-4, ECF No. 1. Ambriz also appears to suggest that the manner in
10
which Leija conducted the physical examination caused him physical pain, due to an allegedly
“bizarre examination methodology and procedure.” Id. at 3. But such factual allegations
necessarily arise out of the medical or related functions that Leija was performing as a U.S. Public
Health Service officer within the scope of his employment with the U.S. Public Health Service,
assigned to FMC Fort Worth.
Ambriz asserts in the Complaint the cursory allegations that Leija was acting “outside the
scope of his physical therapist role” and “outside the scope of his federal job authority.” Compl.

12, ECF No. 1. But these are simply conclusory statements, and the facts elsewhere pleaded in the
Complaint—not to mention Leija’s Declaration—make clear that Ambriz’s dealings with Leija
occurred entirely within the context of Leija’s assigned job as a U.S. Public Health Service officer
detailed to serve as a physical therapist at FMC-Fort Worth. Indeed, Ambriz complains of notes
made by Leija in his medical records and the conduct of a physical examination, which are clearly
medical functions, and Ambriz offers no explanation of why or how Leija could have been making
entries in medical records and seeing patients for physical examinations inside the confines of a
federal prison, if not for his assignment there as a physical therapist.
Based on the foregoing, this Court concludes that Ambriz’s Bivens action against defendant

Leija is barred by absolute immunity. Thus, Raul Leija’s motion to dismiss must be granted on
that basis.
IV. CONCLUSION AND ORDER
For all of the above and foregoing reasons,
It is ORDERED that defendant USA’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) (ECF No. 13) is GRANTED, such that all plaintiff Hugo Ambriz’s claims
11
against the USA under the Federal Tort Claims Act are DISMISSED without prejudice for lack
of subject matter jurisdiction.
It is further ORDERED that defendant Raul Leija’s motion to dismiss under Federal Rule
of Civil Procedure 12(b)(1) (ECF No. 16) is GRANTED, such that all plaintiff Hugo Ambriz’s
claims against Raul Leija are DISMISSED without prejudice for lack of subject matter
jurisdiction.
SO ORDERED on this 15th day of July, 2020.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448645. Public record. Not legal advice.