United States District Court, D. Montana, Great Falls Division
L. Christensen, Chief District Judge.
Gallardo-Thunder Hawk, a federal prisoner proceeding in forma
pauperis and without counsel, filed this action alleging he
was held in a federal holding cell for nearly five hours
without the ability to use the restroom, he repeatedly
requested to use the restroom, and was forced to endure
severe pain and lay in his own excrement for several hours.
(Amd. Cmplt, Doc. 9 at 10.) The Amended Complaint was
screened pursuant to 28 U.S.C. §§ 1915, 1915A and
United States Magistrate Judge Johnston determined that Mr.
Gallardo-Thunder Hawk had at least stated a Fifth Amendment
substantive due process claim against the two "John
Doe" United States Marshals.
caption of his Amended Complaint, Mr. Gallardo-Thunder Hawk
named the United States and Judge Johnston liberally
construed Mr. Gallardo-Thunder Hawk's pleadings as
raising a claim under the Federal Tort Claims Act (FTCA). It
could not be determined from the face of the Complaint
whether Mr. Gallardo-Thunder Hawk had completed the
administrative review process required by 28 U.S.C. §
2401(b) which requires a tort claim against the United States
to be presented in writing to the appropriate Federal agency
within two years after such claim accures. See McNeil v.
United States, 508 U.S. 106 (1993). Since it was not
clear whether the FTCA's exhaustion requirement is a
defense or a pleading requirement, this claim was also served
upon the United States. See Wyatt v. Terhune, 315
F.3d 1108, 1119 n. 13 (9th Cir. 2003).
United States filed a Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1) and (6) arguing that the
Court lacked subject matter jurisdiction over any claim in
this action against the United States under the FTCA because
Mr. Gallardo-Thunder Hawk failed to exhaust his
administrative remedies. In addition, the United States
argues that Mr. Gallardo-Thunder Hawk's claims are
outside the scope of the United States' limited waiver of
sovereign immunity. (Doc. 20.)
United States through the FTCA, has made a limited waiver of
sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475
(1994); see Myers & Myers, Inc. v. United States
Postal Service, 527 F.2d 1252, 1256 (2nd Cir. 1975)
(FTCA waived sovereign immunity for certain torts committed
by federal employees and federal agencies).
a plaintiff can file an FTCA action in federal court, he must
exhaust the administrative remedies for his claim and file an
administrative claim with the appropriate federal agency. 28
U.S.C. § 2675(a); D. L. v. Vassilev, 858 F.3d
1242, 1244 (9th Cir. 2017). "An administrative claim is
deemed exhausted once the relevant agency finally denies it
in writing, or if the agency fails to make a final
disposition of the claim within six months of the claim's
filing." D.L., 858 F.3d at 1244; Jerves v.
United States, 966 F.2d 517, 518 (9th Cir. 1992). The
administrative exhaustion requirement is jurisdictional, must
be strictly adhered to, and cannot be waived. See
D.L., 858 F.3d at 1244; Brady v. United States,
211 F.3d 499, 502 (9th Cir. 2000).
United States argues that a review of FTCA administrative
claims presented to the United States Marshals Service
reveals that Mr. Gallardo-Thunder Hawk did not present his
claims arising out of the incidents alleged in the Complaint.
(Doc. 20 at 6 citing Declaration of Gerald M. Auerbach, Ex. 1
undisputed evidence establishes that Mr. Gallardo-Thunder
Hawk failed to exhaust his administrative remedies for his
claim by failing to file an administrative claim with the
United States Marshals Service. As such, the Court lacks
subject matter jurisdiction over Mr. Gallardo-Thunder
Hawk's FTCA against the United States.
upon the foregoing, the Court issues the following:
Gallardo-Thunder Hawk's FTCA is DISMISSED for lack of
subject matter jurisdiction.
United States is DISMISSED.