# Bryant v. Secretary U.S. Department of Veterans Affairs Agency

> District Court, N.D. Ohio · October 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11158861

## Case

- **Full name:** Regina Bryant v. Douglas A. Collins, Secretary of the U.S. Department of Veterans Affairs
- **Court:** District Court, N.D. Ohio
- **Decided:** October 7, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

Regina Bryant, Case No. 1:25-cv-166-PAB

Plaintiff,
-vs- JUDGE PAMELA A. BARKER

Douglas A. Collins, Secretary MEMORANDUM OPINION AND
of the U.S. Department of ORDER
Veterans Affairs,

Defendant.

Currently pending before the Court is the Partial Motion to Dismiss (“Defendant’s Motion”)
of Defendant Douglas A. Collins, Secretary of the United States Department of Veterans Affairs
(“Defendant”), filed June 10, 2025. (Doc. No. 19.) On June 27, 2025, Plaintiff Regina Bryant
(“Plaintiff” or “Bryant”) filed a Brief in Opposition to Defendant’s Motion (“Bryant’s Opposition”).
(Doc. No. 20.) On July 7, 2025, Defendant filed a Reply Brief in support of his Motion (“Defendant’s
Reply”). (Doc. No. 21.) On July 14, Bryant filed a Sur-Reply. (“Bryant’s Sur-Reply”).1 (Doc. No.
23.)
For the following reasons, Defendant’s Motion is GRANTED.

1 Bryant styled this filing as another “Response to Defendant’s Motion to Partial Dismissal” and wrote as follows: “Come
Now, the plaintiff (Regina Bryant) who hereby submits these documents into evidence as an exhibit against the
Defendant’s Motion for Partial Dismissal”). (Doc. No. 23 at PageID# 700.) However, this additional response sets forth
her position and includes supporting documentation, so the Court considers the filing to be a Sur-Reply filed without
leave of Court. Nevertheless, because Plaintiff is a pro se litigant, the Court will consider this filing in its analysis. See,
e.g., Fedele v. INEOS Pigments USA, 2025 WL 50240 at *1 n.2 (N.D. Ohio Jan. 8, 2025) (Barker, J.) (“In light of Fedele’s
pro se status, and because the Defendants did not move to strike his filings, the Court will nonetheless consider Fedele’s
Sur-Replies. However, in the future, Fedele is reminded that he must seek leave before filing any additional brief after
filing his initial brief in opposition.”); Anderson v. Ridgeway, 2024 WL 1466868 at *1 (N.D. Ohio Apr. 4, 2024) (Knepp,
J.) (quoting Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006)) (“Despite Plaintiff not properly requesting leave of
court before filing, the Court will consider Plaintiff’s sur-reply in keeping up with case law holding [that] courts ‘construe
filings by pro se litigants liberally.’”).
I. Background
A. Factual Allegations
At the time of the events alleged in her Amended Complaint, Bryant was employed as a
Medical Supply Technician at the VA Medical Center in Cleveland, Ohio. (Doc. No. 15-1 at PageID#
192.) Bryant alleges that she was diagnosed with uterine cancer on November 8, 2022. (Doc. No.
15 at PageID# 162.) Her doctor scheduled her to have surgery on December 28, 2022. (Doc. No. 15

at PageID# 163.) Bryant “put in leave request on November 30, 2022.” (Id.) On December 21,
2022, she “received an email from V.A medical center human resources stating that she was approved
for leave.” (Id. at PageID# 165.) But later that day, she “received another email telling her that she
ha[d] been denied” time for leave. (Id.)
Karen Kendrick, Bryant’s supervisor and the Chief of the Sterile Processing Service, “refused
to agree” to allow Bryant to take leave for her surgery because “she did not want the plaintiff to have
any time off, to have the surgery.” (Id. at PageID# 166.) Both Kendrick and Teresa Holder, the
Office Timekeeper (referred to as the “Administrator” in the Amended Complaint), “refused to allow
the plaintiff time off from work” and they “knew exactly what they were doing.” (Id.; Id. at PageID#s
161-62.)

On December 27, 2022, “the plaintiff receive[d] an email from the person she had been
working with [at] Human Resource telling her that her department would not be approving her
requests. That was the last email plaintiff receive[d] from human resources[.]” (Doc. No. 15 at
PageID# 172.) She “had no choice but to cancel her Cancer surgery, because she was denied leave
to have the surgery.” (Id.)

2
Thus, Bryant avers that she “was subject to emotional Anguish and mental distress when she
was denied time off from work for her cancer surgery. The plaintiff was forced to cancel her cancer
surgery because the chief of her department, Karen Kendricks, and the Administrator (Teresa Holder)
acted in malice when they denied her time off for her Uterine cancer surgery.” (Doc. No. 15 at
PageID#s 161-62.)
Bryant alleges that “[t]hroughout [her] years of working in the VA Medical Center she has

been harassed, bullied and forced to work in a hostile work environment.” (Id. at PageID# 164.) For
instance, “[i]n another act of Intentional Infliction of emotional distress, the chief (Karan [sic]
Kendrick) moved Dionna Arthur back to the same shift to work as the Plaintiff. Dionna Arthur is the
same coworker who has been harassing the plaintiff for years.” (Id. at PageID# 173.)
Bryant “was rescheduled for surgery on July 14, 2023.” (Id. at PageID# 176.) On June 15,
2023, Kendrick “sent the plaintiff an Email requesting documentation from the plaintiff’s physician
on the surgical procedure and time she will be out of the department” but “[t]he plaintiffs Doctors
had already faxed over [her] FMLA paperwork to human resources.” (Id. at PageID# 178.) The next
day, Bryant responded to Kendrick “telling her that human Resource already had all my surgical
procedure supporting documentation from my doctor's office.” (Id. at PageID# 180.)

Finally, on July 7, 2024, Byrant alleges that she “was approved by Human resources to use
my FMLA leave without pay for my surgery.” (Id. at PageID# 182.)
B. Procedural History
Bryant filed her Complaint in this Court on January 30, 2025. (Doc. No. 1.) On May 28,
2025, Bryant filed her Amended Complaint. (Doc. No. 15.) Therein, she asserts ten (10) claims: (1)
“Intentional Infliction of Emotional distress;” (2) “Emotional Anguish;” (3) “Mental distress;” (4)

3
“Discrimination Based on Disability;” (5) “Harassment/Hostile work environment;” (6) Retaliation
for prior EEO activity;” (7) “Negligent Emotional distress;” (8) “FMLA Interference with right to
take Leave;” (9) “Willful Violation under the family and medical leave act;” and (10) “Family
medical leave Discrimination.” (Id. at PageID# 157.) Bryant attached thereto a “Transmittal of Final
Agency Decision” from the “Department of Veterans Affairs Office of Employment Discrimination
Complaint Adjudication.” (Doc. No. 15-1 at PageID# 188.)

On June 10, 2025, Defendant filed his Motion, seeking to dismiss Bryant’s claims for
Intentional Infliction of Emotional Distress (“IIED”) and Negligent Infliction of Emotional Distress
(“NIED”) for failure to exhaust her administrative remedies. (Doc. No. 19.) On June 27, 2025,
Bryant filed her Opposition. (Doc. No. 20.) On July 21, 2025, Defendant filed his Reply. (Doc. No.
21.) On July 14, 2025, Bryant filed her Sur-Reply. (Doc. No. 23.)
II. Legal Standard
In order to survive a motion to dismiss under Rule 12(b)(6),2 “a complaint must contain (1)
‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘formulaic recitation of a cause
of action’s elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007)).

2 It is well established that a “failure to exhaust administrative remedies may appropriately be considered under Rule
12(b)(6).” Mincey v. Univ. of Cincinnati, 2012 WL 1068167 at *2 (S.D. Ohio Mar. 29, 2012) (citing Youseff v. Ford
Motor Co., 225 F.3d 660 (table), 2000 WL 799314 *2 (6th Cir. 2000)); W.R. v. Ohio Health Dep’t, 651 Fed. Appx. 514,
517 n.3 (6th Cir. 2016) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)) (“Though the district court did not identify the
rule under which it dismissed the complaint, dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate for failure to exhaust
administrative remedies.”). “Section 2675 establishes mandatory claims-processing rules that must be satisfied prior to
filing suit[,]” and so “the FTCA’s exhaustion requirement isn’t jurisdictional[.]” See Mattox v. United States, 2025 WL
2524845 at *4 n.5 (E.D. Ky. Sept. 2, 2025 (quoting Kellom v. Quinn, 86 F.4th 288, 293 (6th Cir. 2023) and Copen v.
United States, 3 F.4th 875, 881-82 (6th Cir. 2021)); see also Hykes v. Lew, 2017 WL 4863108 at *2 (6th Cir. Mar. 1,
2017) (“Exhaustion, though, is only a condition precedent to filing suit, not a jurisdictional requirement.” ).
4
The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief
above the speculative level—“does not ‘require heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face.’” Bassett v. National Collegiate Athletic
Ass'n., 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S. at 555–556). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Deciding whether a complaint states a claim for relief that is plausible is a
“context-specific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 679.
Consequently, examination of a complaint for a plausible claim for relief is undertaken in
conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires
only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific
facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(quoting in part Erickson v. Pardus, 551 U.S. 89 (2007)). Nonetheless, while “Rule 8 marks a notable
and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not

unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556
U.S. at 679.
III. Analysis
In his Motion, Defendant argues that the Court should dismiss Bryant’s IIED and NIED
claims because she failed to exhaust her administrative remedies under the FTCA, 28 U.S.C. § 2675,
before bringing this action. (Doc. No. 19-1 at PageID# 242.) According to Defendant, “Bryant does

5
not allege she has submitted an administrative tort claim to the VA before initiating this lawsuit for”
her IIED and NIED claims. (Id. at PageID# 19-1 at PageID# 242.) Thus, she has not alleged “that
she has exhausted her administrative remedies, or even pursued administrative remedies, for either
the intentional or negligent emotional distress claims prior to commencing this action.” (Doc. No.
19-1 at PageID# 244.) In Bryant’s Opposition, she argues that she has “exhausted all administrating
[sic] remedies” with the following argument:

The plaintiff (Regina Bryant) filed Federal torts claim with the U.S. Department of
Veterans Affairs office of General Counsel3 on November 26, 2024. The plaintiff’s
claim was reviewed by the Federal torts claim Attorney.

The plaintiff’s claim was denied by the Torts claim Attorney. The plaintiff also
received a certified letter from the Federal tort claims office Denying her claim. The
plaintiff mentions her federal tort claim in the initial Disclosures and will provide all
the paperwork from her Torts claim in the production of Documents.

(Doc. No. 20 at PageID# 252.)
In his Reply, Defendant notes that “[f]or the first time, Bryant alleges she has exhausted her
administrative remedies” and only there, in her Opposition, does she allege that “she filed an
administrative tort claim on November 26, 2024.” (Doc. No. 21 at PageID# 266.)4 Defendant then
explains that even if the Court accepts Bryant’s allegations in her Opposition (i.e., that she “filed
Federal torts claims with the U.S. Department of Veterans Affairs Office of General Counsel on
November 26, 2024” and that her “claim was denied by the Torts claim Attorney”), she nevertheless
filed this lawsuit before the denial and therefore prematurely. (Id. at PageID# 268.)

3 Hereinafter, the United States Department of Veterans Affairs, Torts Law Group is referred to as “TLG.”

4 Defendant also points to 38 C.F.R. § 14.604, which defines what it means for a claim to be “presented” under the FTCA
but does not argue that Bryant failed to “present” her claim. (Id.)
6
In her Sur-Reply, Bryant asks the Court to consider three letters from the TLG to show that
she exhausted her administrative remedies. (Doc. No. 23 at PageID# 700; Doc. No. 23-1 at 767-68;
Id. at PageID#s 769-70; Id. at PageID# 771.) In the first letter, dated February 5, 2025 (the “February
Letter”), the TLG notes that it received her administrative complaint on November 23, 2024, but that
TLG could not investigate it until she included a “sum certain.” (Id. at PageID# 767.) In the second
letter, dated March 21, 2025 (the “March Letter”), the TLG notes that “[f]rom the date VA received

your claim, you are required to allow VA at least six months to consider your claim. After VA has
had your claim for at least six months, you may file suit in federal district court.” (Id. at PageID#
769.) The March Letter concludes “Attorney Graig Komorowski has been assigned to research your
claim. If you are not contacted after six months from the date of this letter, you may want to contact
him at (202) 603-4464 or craig.komorowski@va.gov. Please note, VA staff handling FTCA claims
work for the federal government and cannot provide you with legal advice or representation.” (Id.)
In the third letter, dated April 22, 2025 (the “April Letter”), the TLG specified that it denied her claim
because
[t]he employment issue(s) you raise in the SF-95 relate to your employment at the VA.
Such matters are not cognizable under the FTCA. The proper forums for those
complaints are the Merit Systems Protection Board (MSPB), [and] the Equal
Employment Opportunity Commission.

If you are dissatisfied with the denial of your claim, you may file suit directly under
the FTCA, which provides for judicial review when an agency denies an administrative
tort claim. The claimant must initiate the suit within six months of the mailing of this
final agency action (28 U.S.C. § 2401(b)).
(Id. at PageID# 771.) Byrant reads the March Letter to mean “that the plaintiff had to wait six months
before filing a lawsuit. The reason the plaintiff is submitting this evidence is because prior to that,
the plaintiff had no idea she had to wait to file a lawsuit . . . It was the first time the plaintiff had been
7
informed by the Torts Law Group that she had to wait six months to file a lawsuit.” (Doc. No. 23 at
PageID# 701.) Second, Bryant explains that she commenced the immediate suit because she “was
afraid that she would not be allowed to file her case because of the time limit of two years for the
case to be filed in the district court.” (Id.) Third, “there was no information sent to her about the rule
are [sic] laws of the torts claim. The plaintiff only found out on March 24, 2025, that she could not
file a case with the District court until the Torts claim was denied.” (Id.)

As set forth below, the Court concludes that it must dismiss Bryant’s IIED and NIED claims.
“This circuit has described this exhaustion requirement as a ‘mandatory’ claims processing
rule.” Bray v. Bon Secours Mercy Health, Inc., 97 F.4th 403, 416 (6th Cir. 2024) (quoting Kellom,
86 F.4th at 293 and Copen v. United States, 3 F.4th 875, 880-81 (2021)); Ellis v. Ficano, 73 F.3d 361
(6th Cir. 1995) (“With regard to common-law tort claims against the United States, a plaintiff must
exhaust administrative remedies under the FTCA.”). A plaintiff can therefore only bring a claim
under the FTCA in district court if they have first exhausted their administrative remedies.5 Towards
that end, 28 U.S.C. § 2675(a) defines when a plaintiff has exhausted their administrative remedies:
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. The
failure of an agency to make 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 denial of
the claim for purposes of this section.

5 Also, as Defendant accurately notes, the FTCA is a “limited waiver of sovereign immunity.” (Doc. No. 19-1 at PageID#
243) (citing Chomic v. United States, 377 F.3d 607, 609 (6th Cir. 2004) (“In other words, the Act waives sovereign
immunity to the extent that state-law would impose liability on a private individual in similar circumstances”) (citation
omitted)).

8
28 U.S.C. § 2675(a). Thus, a plaintiff exhausts his or her administrative remedies when the agency
either denies the administrative claim or waits six months without making a decision. See Coker v.
Summit Cnty. Sheriff's Dep’t, 90 Fed. Appx. 782, 784 (6th Cir. 2003) (citing 28 U.S.C. § 2675(a))
(“Denial of an administrative claim, however, is statutorily presumed if six months pass without
action on a properly filed administrative claim.”).
While § 2675(a) establishes when a plaintiff has exhausted administrative remedies, 28 U.S.C.

§ 2401(b) establishes the statute of limitations for a cause of action under the FTCA. There are two
relevant limitations periods for tort claims brought under the FTCA. See 28 U.S.C. § 2401(b); Staples
v. Dewalt, 2009 WL 1505560 at *5 E.D. Ky. May 27, 2009 (quoting 28 U.S.C. § 2401(b)). The first
limitations period requires the plaintiff to present a claim “in writing to the appropriate Federal
agency within two years after such claim accrues[.]” Id. The second limitations period requires the
plaintiff to bring a civil action “within six months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim[.]” Id. The Sixth Circuit has explained:
Section 2401(b) outlines the procedural requirements for bringing an FTCA tort claim
and was enacted to ‘require the reasonably diligent presentation of tort claims against
the [g]overnment.’ United States v. Kubrick, 444 U.S. 111, 123 (1979). It specifically
requires claimants to first file their claim with the appropriate administrative agency
within a two-year statute of limitations before bringing the claim into federal court. 28
U.S.C. § 2401(b). The claimant has the option to file in federal court as early as six
months after filing with the administrative agency if a notice of denial has not been
delivered to the claimant. Id. § 2675. Once an administrative denial has been rendered,
however, a claimant then is required to file in federal court within a six-month statute
of limitations that starts running as of the date of the notice of denial. Id. § 2401(b).
This two-step process was enacted to preserve judicial resources by streamlining the
process for valid claims and switching their starting place to the administrative agency
with the most information instead of the federal courts.
Kennedy v. United States Veterans Admin., 526 Fed. Appx. 450, 454 (6th Cir. 2013) (citing McNeil,
508 U.S. at 112 n.7). Combined, §§ 2675(a) and 2401(b) direct plaintiffs to bring their claims to the
9
relevant agency within two (2) years, and then—if denied or if six (6) months elapse without a
decision—to file a civil action in district court within six (6) months thereafter.
As set forth below, the Court holds that Bryant’s claims for IIED and NIED must be dismissed
without leave to amend because she (1) failed to allege administrative exhaustion in her Amended
Complaint, and (2) even if the Court included her proposed allegations in a subsequently amended
pleading, those allegations also show that she failed to exhaust her administrative remedies.

A. Bryant failed to allege administrative exhaustion of her IIED and NIED claims
in her Amended Complaint.
“To assert a claim under the FTCA, then, a claimant must exhaust his administrative remedies
prior to filing suit.” United States v. Scherer, 2015 WL 5381671 at *17 (S.D. Ohio Sept. 14, 2015);
see also Harris v. United States, 2023 WL 4530852 at *2 (N.D. Ohio July 13, 2023), aff’d, 2024 WL
3544617 (6th Cir. Apr. 4, 2024) (“Plaintiff’s pleadings do not indicate that he has filed an
administrative claim regarding any tort he seeks to assert in the case. Therefore, any such claim is
subject to dismissal for this reason as well.”).
Bryant failed to allege administrative exhaustion in her Amended Complaint. This deficiency
is fatal to her IIED and NIED claims. Notably, Bryant did attach a Final Agency Decision, dated
November 4, 2024 to her Amended Complaint (Doc. No. 15-1), and that document does operate as
part of her Amended Complaint. See Detrick v. KCS Int’l Inc., 781 F. Supp. 3d 588, 642 (N.D. Ohio
2025) (Barker, J.) (quoting Fed. R. Civ. P. 10(c)) (explaining that Fed. R. Civ. 10(c) makes any “copy
of any written instrument that is an exhibit to a pleading [] part of the pleading for all purposes”).
But the Final Agency Decision is unrelated to Bryant’s administrative tort claims. Instead, that was
a Final Agency Decision from the Department of Veterans Affairs Office of Employment

Discrimination. (Id. at PageID# 189.) That Office only adjudicated her claims for “disparate
10
treatment based on disability,” “reprisal,” “harassment (non-sexual)” and “hostile work
environment,” not her IIED or NIED claims, which were evaluated by the TLG. (Id. at PageID# 197-
98, 203.)
Accordingly, the Court concludes that Defendant is correct that Bryant’s Amended Complaint
fails to allege that she exhausted her administrative remedies as to her IIED and NIED claims, and
therefore, she has failed to state a claim for IIED and NIED.

B. Bryant’s proposed allegations fail to show that she exhausted her administrative
remedies as to her IIED and NIED claims at the time she instituted this action.
After Defendant filed his Motion, Bryant included the additional allegations noted above,
namely that she did file an administrative tort claim on November 26, 2024, and that the TLG denied
it. (Doc. No. 20 at PageID# 252.) Both parties agree that the denial occurred on April 22, 2025.
(Compare Doc. No. 21 at PageID# 268 [Defendant asserting that “On April 22, 2025, the
administrative tort claim was denied”] with Doc. No. 23 at PageID# 701 [Bryant asserting “The
plaintiff received a denial letter from the torts claims law firm on April 22, 2025” and “[o]n April 22,
2025, the plaintiff was sent a denial letter from the Torts law group which indicated that the issues
she raised were not cognizable under the FTCA.”].)
As set forth below, the Court concludes that Bryant could not amend her pleading in her
Opposition, and that even if the Court considered such allegations in a properly filed amendment, the
new allegations could not save her IIED and NIED claims.
1. Bryant cannot amend her Amended Complaint in her Opposition.
The Court initially emphasizes that an opposition brief is not the proper procedural vehicle
for amending a pleading. See Am. Assoc. of Nurse Anesthesiology v. Kennedy, 2025 WL 2459208 at

*5 (N.D. Ohio. Aug. 26, 2025) (Barker, J.) (quoting Becton v. Corrs. Corp. of Am., 2017 WL 1461632
11
at *2 (M.D. Tenn. Mar. 28, 2017) (“[A] plaintiff may not amend his complaint by adding factual
allegations as a part of a response in opposition to a motion to dismiss.”) and Mohamed v. Bank of
Am., N.A., 771 F. Supp. 3d 695, 708 n.5 (D. Md. 2025) (“[A] memorandum in opposition to a motion
is not a proper vehicle for amending a complaint or adding new claims.”)). But Defendant correctly
underscores that Bryant only included her allegations about administrative exhaustion for the first
time in her Opposition, not in her Complaint or Amended Complaint. (Doc. No. 21 at PageID# 266.)

Accordingly, the Court cannot consider Bryant’s new allegations in its evaluation of her
Amended Complaint, and thus, the Amended Complaint fails for the reasons set forth in Section III.A.
2. Bryant did not exhaust her administrative remedies as to her IIED and
NIED claims.
Next, even if Bryant were to add the additional allegations she includes in her Opposition,
those allegations establish that she did not exhaust her administrative remedies. Bryant alleges that
she filed her administrative tort claim with the TLG on November 26, 2024 (see Doc. No. 20 at
PageID# 252) and she commenced this suit on January 30, 2025 (see Doc. No. 1), but the TLG denied
her claim on either April 22 or May 9, 2025,6 so the administrative denial occurred during the
pendency of this suit.
Defendant cites Johnson v. United States, 2025 WL 92993 at *1 (W.D. Tenn. Jan. 14, 2025)
and Fawcett v. United States, 2014 WL 4183683 at *4 (N.D. Ohio Aug. 21, 2014) to support his
contention that exhaustion is a prerequisite for bringing a civil action. Each case clearly supports that
proposition. In Johnson and Fawcett, the plaintiffs filed their civil actions before their administrative
tort claims had been resolved, either through denial or after the six-month period had elapsed. See
Johnson, 2025 WL 92993 at *2 (dismissing civil action because the plaintiff failed to “submit an

6 In her Sur-Reply, Bryant admits she received the denial letter on April 22, 2025. (Doc. No. 22 at PageID# 701.)
12
administrative [tort] claim prior to the filing of this lawsuit” and noting that “the Government
acknowledges that he submitted one after the filing of this lawsuit but the claim has not reached a
final disposition.”); Fawcett, 2014 WL 4183683 at *4 (“[T]he magistrate judge correctly concluded
that Plaintiff’s federal lawsuit—commenced on August 20, 2013—was initiated prematurely before
the expiration of the six month period following the presentment of his administrative claim.”).
Accordingly, because Bryant had not received a final decision from TLG when she filed this

civil action on January 30, 2025, she failed to exhaust her administrative remedies, so her IIED and
NIED claims in this action must be dismissed. See 28 U.S.C. § 2675(a).
3. Bryant’s post-exhaustion Amended Complaint also cannot assert her IIED
and NIED claims.
Lastly the Court notes that although Bryant filed her Complaint before the TLG denied her
administrative tort claims (compare Doc. No. 1 [Complaint filed on January 30, 2025] with Doc. No.
23-1 at PageID# 771 [administrative claim denied on April 22, 2025]), Bryant filed her Amended
Complaint (which maintained her IIED and NIED claims) on May 28, 2025—which was after the
TLG denied her administrative tort claim on April 22, 2025. (Doc. No. 15.) Thus, Bryant’s Amended
Complaint came after she exhausted her administrative remedies, i.e., after she received the TLG’s
denial letter on April 22, 2025. (Doc. No. 21 at PageID# 771.)
Still, this distinction is of no moment. Filing a post-exhaustion amended complaint is not
enough to satisfy 28 U.S.C. § 2675(a)’s requirement that the plaintiff “institute” an “action” under
that statute. See § 2675(a). First, a close reading of McNeil v. United States, 508 U.S. 106 (1993)
clarifies this principle. Like Bryant, the plaintiff in McNeil filed a civil action and an administrative
tort action, and the agency released its final decision during the pendency of the civil action. See 508

U.S. at 112. But the Court explained that “we think the normal interpretation of the word ‘institute’
13
is synonymous with the words ‘begin’ and ‘commence.’ The most natural reading of the statute
indicates that Congress intended to require complete exhaustion of Executive remedies before
invocation of the judicial process.” Id. (emphasis added). The Court therefore concluded that “[t]he
District Court properly dismissed his suit.” Id.
The McNeil Court’s reliance on completing exhaustion before invoking the judicial process
clarifies why post-exhaustion amended complaints cannot satisfy § 2675(a); it is beyond dispute that

the complaint marks the “invocation of the judicial process” under McNeil because the complaint is
what “commence[s] a civil action.” 508 U.S. at 110; Fed. R. Civ. P. 3 (“A civil action is commenced
by filing a complaint with the court.”).7 Thus, filing an amended complaint after exhausting
administrative remedies, as Bryant has done here, cannot retroactively “institute” a new civil action
consistent with § 2675(a).
Next, Defendant also cites Harris v. City of Cleveland, 7 Fed. Appx. 452 (6th Cir. 2001),
which alludes to but does not directly stand for this principle.8 In January 1998, plaintiff Harris filed
his complaint without FTCA claims; in May 1998, Harris filed both an amended complaint (adding
FTCA claims) and he filed administrative tort claims with the appropriate agency; in August 1998,
he filed a second amended complaint (reasserting his FTCA claims); in November 1998, six months

elapsed after Harris filed his administrative tort claims, and thus, his administrative tort claims were
deemed denied;9 finally, the district court dismissed his FTCA claim in October 1999. See Harris, 7

7 See also United States ex rel. Dhillon v. Endo Pharms., 617 Fed. Appx. 208, 213 (3d Cir. 2015) (“Although an amended
complaint supersedes an original complaint . . . the filing of an amended complaint does not begin a new action; it is a
continuation of the original action.”).

8 Johnson and Fawcett also do not address amended complaints raising FTCA claims after exhaustion. See generally
Johnson, 2025 WL 92993; Fawcett, 2014 WL 4183683.

9 The court wrote that “Appellant argues six months did eventually pass with no resolution of his claim prior to the district
court's dismissal of the second amended complaint.” Harris, 7 Fed. Appx. at 458. The Court interprets this to mean that
14
Fed. Appx. at 455, 458-59. The Sixth Circuit affirmed, highlighting that “[u]nder the plain language
of the statute as interpreted by this Court, the district court procedurally lacked subject matter
jurisdiction to hear Appellant’s FTCA claim in the second amended complaint because the claim had
not yet become ripe when the complaint was filed.” Id. (emphasis added).10 Thus, Harris established
that a plaintiff’s FTCA claim must be “ripe when the complaint was filed” or else it is subject to
dismissal. See id. But as noted above, Harris is distinguishable because Harris did not amend his

complaint after he received a final decision, as Bryant has done here.
Nevertheless, recent Sixth Circuit precedent squarely forecloses that option for Bryant as well.
In Kellom v. Quinn, 86 F.4th 288 (6th Cir. 2023), cert. denied sub nom. Kellom v. United States, 144
S. Ct. 2661 (2024), the estate of a decedent shot by a federal agent brought a tort claim under the
FTCA in a civil action against the Department of Homeland Security. See 86 F.4th at 290. “Then,
the estate filed a claim with [] the Department of Homeland Security” which “denied the claim.” Id.
However, the court noted that after receiving the denial, “[t]he estate didn’t bring a new suit. Instead,
in May 2018, it amended its earlier-filed complaint, continuing to assert the same FTCA claims as
before.” But that was not proper. “A plaintiff who fails to comply [with § 2675(a)] can’t cure that
failure by exhausting administrative remedies while the suit is pending: the claim must be reasserted

in ‘a new action.’” Id. at 292 (quoting McNeil, 508 U.S. at 110-12). The court concluded that “[i]n
sum, the estate violated the FTCA by suing prematurely. It didn’t cure that defect by filing an

Harris argued that he received a final agency decision in November 1998 by operation of § 2675(a), i.e., six (6) months
after he filed his administrative tort claim in May 1998.

10 As explained above, the Sixth Circuit has more recently clarified that exhaustion is not jurisdictional, but a claims-
processing rule. See Mattox, 2025 WL 2524845 at *4 n.5 (citing Kellom, 86 F.4th at 293).
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amended complaint.” Id. at 293.11 Kellom is binding precedent, and therefore, it controls Bryant’s
case. Bryant invoked this Court’s judicial process on January 30, 2025. (Doc. No. 1.) That was too
early, so an amendment cannot cure that legal defect. See id.
Accordingly, and for all the reasons set forth above, Bryant has failed to state a claim for
IIED and NIED under the FTCA because her Amended Complaint fails to allege that she exhausted
her administrative remedies at the time she instituted this civil action on January 30, 2025, and her

proposed allegations further establish that she did not exhaust her administrative remedies.
IV. Conclusion
For the foregoing reasons, Defendant’s Partial Motion to Dismiss is GRANTED. (Doc. No.
19.) Plaintiff Regina Bryant’s claims for Intentional Infliction of Emotional Distress and Negligent
Infliction of Emotional Distress are hereby dismissed.
IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
Date: October 7, 2025 U. S. DISTRICT JUDGE

11 Courts in other circuits agree. See, e.g., Sparrow v. United States Postal Serv., 825 F. Supp. 252, 255 (E.D. Cal. 1993)
(“If the claimant is permitted to bring suit prematurely and simply amend his complaint after denial of the administrative
claim, the exhaustion requirement would be rendered meaningless. Because § 2675(a) of the FTCA requires that an
administrative claim be finalized at the time the complaint is filed, plaintiff’s complaint cannot be cured through
amendment, but instead, plaintiff must file a new suit.”); Johnson v. Allen, 2005 WL 607911 at *2 (D.D.C. Mar. 14, 2005)
(quoting Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999)) (“Plaintiff initiated this civil action, however, in
February 2004. His FTCA claim, then, is premature. This defect cannot be cured by amendment of the complaint at a
later date. ‘Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies
and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless
and impose an unnecessary burden on the judicial system.’”); Patterson v. Potope, 2013 WL 1314050 at *30–31 (M.D.
Pa. Mar. 28, 2013) (collecting cases) (“Here, it is undisputed that no final denial had been made as to the tort claim filed
on January 25, 2011, when Plaintiff initiated this action. Plaintiff’s reliance on his motions to amend and to supplement,
and on his amended complaint, which were filed after the agency claim was denied, is misplaced.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11158861. Public record. Not legal advice.