# Tovar v. United States

> District Court, S.D. Texas · October 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11158263

## Case

- **Full name:** Jose L. Tovar v. United States of America, et al.
- **Court:** District Court, S.D. Texas
- **Decided:** October 6, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11158263

## Opinion text

UNITED STATES DISTRICT COURT October 06, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
CORPUS CHRISTI DIVISION

JOSE L TOVAR, §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. 2:24-CV-00167
§
UNITED STATES OF AMERICA, et al., §
§
Defendants. §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION

Pending before the Court is Defendant United States of America’s (the Government’s)
Motion to Dismiss (D.E. 39). On June 13, 2025, United States Magistrate Judge Jason B.
Libby issued a Memorandum and Recommendation (M&R, D.E. 42), recommending that the
Government’s motion be granted and that Tovar’s action be dismissed for want of jurisdiction
for failing to exhaust administrative remedies. After obtaining an extension of time, Tovar
timely filed his objections (D.E. 44) on July 1, 2025. The Government responded (D.E. 47).
ISSUE AND PROCEDURAL CONTEXT
The Magistrate Judge concluded that Tovar’s single remaining claim—stated as a
violation of the Federal Tort Claims Act (FTCA)—must be dismissed for want of jurisdiction
because, at the time the case was filed, the FTCA claim was not administratively exhausted.
This has been held to be a jurisdictional defect that cannot be cured by the passage of time.
The Government seeks dismissal with prejudice because any refiling of the claim would be
barred by limitations.
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Tovar objects, arguing that his FTCA claim is proper because it was a new claim in
the case filed for the first time in an amended complaint after administrative exhaustion. He
claims that the only context in which it is proper to dismiss an amended complaint raising an
FTCA claim is when the case already contained a prematurely-filed FTCA claim.

To be clear, the Court evaluates the arguments under the following timeline:
August 18, Dr. Mank allegedly sexually assaulted Tovar while Nurse Thompson
2022 watched. D.E. 1, p. 2.
May 15, Tovar filed an administrative claim (dated March 6, 2024) with the
2024 United States Bureau of Prisons reciting Dr. Mank’s sexual assault
while Nurse Thompson observed and claiming:
Sexual assault and battery; and
Intentional infliction of emotional distress.
D.E. 39-1, 39-2, 39-3.
July 29, Tovar filed this action against the United States and Dr. Mank seeking
2024 money damages and citing the holding of Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The facts
state the nature of the sexual assault and that it was witnessed by Nurse
Thompson, and Tovar complains that:
Dr. Mank sexually assaulted him in violation of the Eighth
Amendment (deliberate indifference to prisoner safety and cruel
and unusual punishment). D.E. 1, p. 4.
The United States was deliberately indifferent in allowing the
abuse to take place. Id.
August 18, As measured from the date of the incident, the FTCA two-year statute
2024 of limitations expired, if not extended by the administrative claim
process. 28 U.S.C. § 2401(b).
August 26, The government denied Tovar’s administrative claim. D.E. 11, p. 1;
2024 D.E. 11-2.
September 4, The Magistrate Judge conducted a Spears1 hearing and warned Tovar
2024 that his claims may not be viable, recommending that he read certain
case opinions. The Magistrate Judge further inquired about Tovar’s
compliance with administrative remedies and ordered Tovar to file an
amended complaint. D.E. 14.

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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September 11, Tovar filed his first amended complaint reciting the same facts and
2024 requesting money damages, but dropping the reference to the Eighth
Amendment and Bivens, and pleading the following claims pursuant to
the FTCA against the United States:
Vicarious liability for Dr. Mank’s conduct. D.E. 11, p. 1.
A violation of Texas common law for assault. Id., p. 4.
Intentional infliction of emotional distress. Id.
January 23, The Court dismissed all of Tovar’s claims against the United States
2025 based on the conduct of its employee, Dr. Mank, but recommitted the
case for evaluation of a Sheridan2 claim, which had been argued, but
not pled.
February 24, Tovar filed his second amended complaint. D.E. 27. He repeats the
2025 claims in his first amended complaint and adds the following claims
pursuant to the FTCA:
A Texas common law premises liability claim. Id., p. 5.
A Texas common law negligence claim for failure to prevent
sexual assaults by Dr. Mank in a healthcare setting. Id., p. 6.
A Texas common law negligence claim with respect to allowing
Nurse Thompson to fail to intervene to prevent a sexual assault.
Id., p. 7.
An intentional infliction of emotional distress claim based on
Nurse Thompson’s inaction. Id., p. 8.
February 26, The FTCA extended limitations period expired, six months from denial
2025 of Tovar’s administrative claim. 28 C.F.R. § 14.9.3

In essence, Tovar contends that his Bivens claims were Eighth Amendment
constitutional claims, not FTCA claims, so he did not run afoul of any FTCA exhaustion
requirement when he filed his original complaint. Defendant counters that, once Tovar filed

2 Sheridan v. United States, 487 U.S. 392, 401 (1988) (“the negligence of other Government employees who allowed a
foreseeable assault and battery to occur may furnish a basis for Government Liability that is entirely independent of the
[tortfeasor’s] employment status.”).
3 Because the extended limitations period has expired, the Government asserts (without having filed an objection) that
this action should be dismissed with prejudice. See D.E. 47, p. 3. Dismissals for lack of subject matter jurisdiction are
ordinarily without prejudice and the Court declines to alter the Magistrate Judge’s conclusion in this regard. See D.E. 42,
p. 14 & n.6.
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suit alleging any legal theory based on the same transaction or occurrence, any new claims
relate back under Federal Rule of Civil Procedure 15(c). Therefore, the only way to preserve
an FTCA claim until it is exhausted is to refrain from filing any other claim for money
damages against the United States arising out of the same facts in the meantime.

DISCUSSION
A. Plain Language
First, Tovar objects to the M&R, arguing that the FTCA’s statutory language
establishing the exhaustion requirement clearly anticipates a claim-by-claim analysis:
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 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). In this regard, he differentiates the initial pleading of
a claim based on Dr. Mank’s sexual assault (an intentional tort evaluated under constitutional
principles) from the amended pleading of a claim based on Nurse Thompson’s failure to
intervene (a matter of negligent failure to safeguard Tovar) and the Government’s complicity
in Nurse Thompson’s failure.4

4 Tovar also argues the holding in Ibrahim v. Dep't of Homeland Security, 538 F.3d 1250, 1258 (9th Cir. 2008). There,
the tort claim was filed in the original complaint and no effort was made to exhaust remedies under the FTCA. But the
Ninth Circuit intimated that the plaintiff could have preserved the FTCA claim by seeking abatement of the case for the
purpose of exhausting administrative remedies. This case does not help Tovar because he also did not seek abatement.
And his argument that little happened in the case during the time the FTCA claim was being exhausted does not change
the fact that the United States was called upon to defend the case before it had an opportunity to evaluate the claim in the
administrative phase. That argument was rejected by the Supreme Court in McNeil v. United States, 508 U.S. 106, 109-
13 (1993).
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Tovar’s plain-language argument is a double-edged sword. If the analysis depends on
precision in stating the claim, the evaluation of the claim should be the same for both the
matter administratively exhausted and the matter litigated. Logically, that means that, if the
amended complaint raising a Sheridan claim for the government’s complicity in Nurse

Thompson’s failure to intervene is separate and apart from Dr. Mank’s perpetration of sexual
assault witnessed by Nurse Thompson, then the Sheridan claim was not exhausted by Tovar’s
administrative claim, which addressed only Dr. Mank’s conduct. It addressed only sexual
assault and intentional infliction of emotional distress. D.E. 39-2.
Because Tovar’s plain-language argument does not preserve his claim either way, the

Court declines to determine which construction defeats him. Either (1) the comparative
claims have to be precisely circumscribed by legal theory, in which case Tovar did not exhaust
the Sheridan claim, or (2) the comparative claims are generally circumscribed by the factual
transaction or occurrence, in which case Tovar filed the action prior to exhausting all of his
claims based on those facts, defeating jurisdiction.

The Court OVERRULES Tovar’s objections based on a plain-language analysis of
the FTCA exhaustion of administrative remedies statute.
B. Artful Pleading
Tovar argues that the cases reveal a pattern. If the pre-exhaustion claim is expressly
stated as an FTCA claim, then no amendment can cure the jurisdictional defect. But if the

pre-exhaustion claim was not expressly stated as an FTCA claim, then the FTCA claim can
be added by amendment post-exhaustion with no jurisdictional issue. D.E. 44, p. 4. While his
original claims were brought against the United States for money damages caused by the same
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factual scenario, he points out that they were labeled as Eighth Amendment and Bivens claims,
not FTCA claims. And, incidentally, his focus has shifted from liability for Dr. Mank’s action
to liability for Nurse Thompson’s inaction.
Tovar cites Valadez-Lopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011), in which the Ninth

Circuit stated, “There is nothing in the statute or our case law that would prevent a plaintiff
from amending an existing complaint asserting non-FTCA claims to name the United States
as a defendant and include FTCA claims once those claims have been administratively
exhausted.” Id. at 856. This is a common theme in the caselaw on which Tovar has seized.5,6
But nothing in those cases permitting a post-exhaustion amendment involved a pre-

amendment claim against the United States for monetary damages arising out of tort
liability—an FTCA claim asserted under some other name. Rather, in Chertoff, the United
States was not brought in as a party until, post-exhaustion, it was named as a defendant in the
new FTCA claim.7

5 Tovar relies on the following cases, along with others cited in the M&R, in his objection: Smith v. Olsen, 455 F. App’x
513, 516 (5th Cir. 2011) (the amended claims were deemed exhausted during the pendency of the case because “these
claims were so unrelated to his original complaint that they ultimately became a separate lawsuit.”); Thomas v. Mace-
Leibson, No. 1:14-CV-02316, 2015 WL 7736737, at *3 (M.D. Pa. Dec. 1, 2015) (previous Bivens claim brought only
against individual prison staff did not preclude amendment to include FTCA claim against the United States); Grancio v.
De Vecchio, 572 F. Supp. 2d 299, 311 (E.D.N.Y. 2008) (FTCA claim was held properly exhausted because the initial
complaint was made against only the individual employees and the United States had not certified that they were United
States employees, which allows substitution of the United States as the defendant, until after the claim was exhausted.
See 28 U.S.C. § 2679(d) (mechanics of converting a claim against individual employees to claims against the United
States)); Vitrano v. United States, No. 06 CIV. 6518 (JCF), 2008 WL 1752221 (S.D.N.Y. Apr. 16, 2008) (claim against
agents for equitable relief did not preclude later addition of an entirely new FTCA claim for damages against the United
States).
6 Tovar also cites the following case, which is inapposite: Alexander v. Harris, No. W-16-CA-333-RP, 2018 WL
11488858 (W.D. Tex. Sept. 5, 2018) (not an FTCA case against the United States; interpretation of PLRA exhaustion
requirement where initial leniency in considering proposed amended pleading resulted in dismissal of all claims on the
merits).
7 The claim was ultimately dismissed because the claim fell outside the FTCA’s waiver of sovereign immunity. Chertoff,
656 F.3d. at 854.
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Here, Tovar sued the United States from the outset—prior to exhaustion—regarding
wrongful employee acts or omissions and seeking monetary damages. This defeats his
argument.
The question presented is not, as the plaintiffs suggest, whether
the initial complaint was explicitly based on FTCA jurisdiction
but whether that pleading advanced claims 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 . . . .’
28 U.S.C. § 2675(a).”
Schneider v. Kissinger, 310 F. Supp. 2d 251, 269 (D.D.C. 2004), aff'd, 412 F.3d 190 (D.C.
Cir. 2005).
On this argument, the Government challenges Tovar’s citation of Rodgers v. Mammoth
Cave National Park, No. 1:16CV-00022-GNS, 2017 WL 101316 (W.D. Ky. Jan. 10, 2017).
D.E. 47. Rodgers involved an initial complaint for violation of duties owed to vessel
passengers under admiralty jurisdiction. When the pre-exhaustion admiralty case was subject
to dismissal because the vessel was not in navigable waters at the time of the incident, the
court allowed a post-exhaustion FTCA claim for ordinary tort liability under FTCA
jurisdiction. Under that court’s precedent, it treated the issue as discretionary and the decision
to permit amendment as a common-sense alternative to filing a second (FTCA) action that
would likely be consolidated with the first (admiralty).
The Court agrees with the Government’s challenge to the use of this case as an outlier
that should not have permitted the FTCA claim to proceed. It had not been exhausted prior to

the original complaint for money damages arising out of the wrongful conduct of a
government employee, regardless of the label placed on the cause of action or the alleged
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jurisdictional basis. The Rodgers court’s treatment of the admiralty claim as materially
different from the FTCA claim is contrary to the language of the exhaustion requirement and
fails to consider Rule 15(c) relation back principles. Schneider, which was decided after
Rodgers and was affirmed by the D.C. Circuit, has the better argument and contrary result. At

any rate, Rodgers is not binding precedent in this Court. See Price v. United States, 69 F.3d
46, 54 (5th Cir. 1995) (precluding the passage of time from curing the jurisdictional issue
created by filing an unexhausted claim).
The Court OVERRULES Tovar’s objection that, by labeling his premature claim as
something other than as an FTCA claim, its filing was not subject to the exhaustion analysis.

C. Rule 15(c) Relation-Back
On the other side of the same coin as artful pleading is the relation-back provision of
Federal Rule of Civil Procedure 15(c). As a substantive matter, refusing to countenance artful
pleading prevents the use of artificial labels to limit the true nature of the claim. Relation-
back, as a procedural matter, ensures that new claims related to the same facts asserted in an

original complaint may be brought as if they had been included in the original complaint.
While the substantive issue is sufficient to dispose of this action, the Court addresses Tovar’s
objections regarding the procedural issue.
The Government argues that any complaint arising from the same facts as those stated
in the original complaint will relate back temporally to that original complaint. More

specifically, the Government argues that an amended complaint cannot cure the jurisdictional
defect of an unexhausted FTCA claim because—in this case—any claim arising from the
sexual assault incident will relate back to the original complaint pursuant to Federal Rule of
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Civil Procedure 15(c). In relevant part, the rule states: “An amendment to a pleading relates
back to the date of the original pleading when: . . . the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—
in the original pleading . . . .” Rule 15(c)(1)(B). Tovar asserts a number of counter-arguments.

Purpose is Only to Avoid Limitations. Tovar asserts that Rule 15(c) has no
application here because its purpose is only to avoid a limitations bar to a claim. But
limitations is only one of the three separate applications it lists. Rule 15(c)(1)(A) specifies
that relation-back applies when permitted by the statute of limitations. However, Rule
15(c)(1)(B) applies relation-back (without mention of limitations) when the claim arose out

of the same conduct. And Rule 15(c)(1)(C) applies relation-back when a new party is added
who had timely notice and knew of a mistake in naming a different party. While each of these
applications may affect limitations, nothing in Rule 15(c) limits the effect of relation-back.
Operative Element. Tovar argues that the “conduct, transaction, or occurrence”
trigger for relation-back refers not to the factual basis for the claim (sexual assault), but to

either the legal theory for recovery (Bivens versus FTCA) or the identity of the individual
whose conduct is the direct impetus for the claim (Dr. Mank versus Nurse Thompson). This
argument ignores the part of the rule that refers to a claim or defense arising out of the conduct
or occurrence. The common element is obviously the fact scenario, whereas the new and
different element is the liability theory—claim or defense—being added or substituted.

According to the Supreme Court, “relation back depends on the existence of a common
‘core of operative facts’ uniting the original and newly asserted claims. Mayle v. Felix, 545
U.S. 644, 659 (2005) (citations omitted). It is well-settled that “As long as the amended
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complaint refers to the same transaction or occurrence that formed the basis for the original
complaint and the defendant was put on notice of the claim by the first complaint, there will
be no bar to amendment; even new defendants and new theories of recovery will be allowed.”
Williams v. United States, 405 F.2d 234, 237 (5th Cir. 1968) (quoting Travelers Ins. Co. v.

Brown, 338 F.2d 229, 234 (5th Cir. 1964) (emphasis added)). It is the fact scenario, not the
legal theory or named parties involved, that determines whether a complaint relates back.
Johnson v. Miller, 126 F.4th 1020, 1030 (5th Cir. 2025).
Here, the fact scenario that Tovar pleads is the same throughout his original, first
amended, and second amended complaints as well as his administrative claim: a sexual

assault perpetrated by Dr. Mank and passively witnessed by Nurse Thompson. That is the
core of operative facts to trigger relation-back under Rule 15(c). It does not matter that Tovar
has shifted his liability theory or his focus from Dr. Mank to Nurse Thompson in seeking
compensation for this horrific bodily violation.
Prior Pleading Rendered Null. Last, Tovar argues that—by operation of Rule 15—

the original complaint is rendered non-existent and thus cannot support a finding that his claim
was filed prior to exhaustion of administrative remedies. D.E. 44, p. 12 (citing Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd, 525 U.S. 299 (1999)). Forsyth only
holds that, when an amended complaint does not carry certain claims or parties forward, it is
deemed to have dismissed them. That does not change the fact that the prior pleading remains

historically relevant for relation-back and limitations purposes. See Mary Kay Kane &
Howard M. Erichsonn, 6 Fed. Prac. & Proc. § 1476 (3d ed.). If the original complaint were

10 / 12
truly rendered void, there would be no relation-back principle—there would never be anything
to relate back to, regardless of the circumstances or purpose.
Moreover, Tovar’s argument would defeat the purposes of an administrative
exhaustion requirement because it would encourage parties to file a lawsuit against the United

States on theories including an FTCA claim prematurely—before providing the government
an opportunity to evaluate and settle the claim—only to amend it post-exhaustion in some
nonmaterial manner in order to revive it. The Government would be faced with
simultaneously defending the lawsuit and processing the administrative claim, which serves
no purpose while substantially increasing the Government’s burden.

The Court OVERRULES Tovar’s objections addressed to the purpose, operation, and
import of Rule 15(c).
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Tovar’s

objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation to
which objections were specifically directed, the Court OVERRULES Tovar’s objections and
ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly,

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Defendant’s Motion to Dismiss (D.E. 39) is GRANTED and this action is DISMISSED
WITHOUT PREJUDICE.
ORDERED on October 6, 20235.
Joel GONZAIGS RAMOS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11158263. Public record. Not legal advice.