United States District Court, E.D. Kentucky, Southern Division, Pikeville
EVERAGE REAL ESTATE, INC., and MARY JOE BUNDY EVERAGE, PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT.
MEMORANDUM OPINION AND ORDER
B. Atkins, Judge
Joe Bundy Everage brings this action seeking compensation
from the United States of America for damages resulting from
her use of psychotropic medication, which was originally
administered to her while she was being held at the Federal
Medical Center Carswell, in Fort Worth,
Texas.. [R. 1]. The United States of America
has moved to dismiss this action arguing that the Court lacks
subject matter jurisdiction. [R. 38]. The matter has been
fully briefed and is now ready for the Court's
consideration. For the reasons that follow the Court finds
that it lacks subject matter jurisdiction to address the
merits of Everage's claims, and the undersigned shall
grant Defendant's Motion to Dismiss for Lack of Subject
BACKGROUND & PROCEDURAL HISTORY
16, 2005, Ms. Everage was indicted on two charges under 26
U.S.C. § 7212(a). First, for endeavoring to obstruct
federal tax laws by threatened use of force. United
States of America v. Mary Joe Everage, 7:05-CR-11-DLB-1,
[R. 1 at 2 (“Count 1”)]. Second, for endeavoring
to obstruct federal tax laws by threatened use of a firearm.
[Id. at R. 1 at 2 (“Count 2”)]. At her
arraignment, Ms. Everage pled not guilty. [Id. at R.
10]. Immediately thereafter, the Court ordered a competency
evaluation be conducted upon motion of both the United States
and Ms. Everage's own attorney. [Id. at R. 12;
id. at R. 14]. At Ms. Everage's competency
hearing, it was determined that Ms. Everage was then
suffering from a mental disease or defect rendering her
mentally incompetent and unable to assist properly in her
defense. [Id. at R. 28 (citing 18 U.S.C. §
4241); id. at R. 59].The Court ordered the
involuntary administration of psychotropic medication under
the standard set by Sell v. United States, 539 U.S.
166 (2003). United States of America v. Mary Joe
Everage, 7:05-CR-11-DLB-1, [R. 63 at 4 (“[T]he
evidence established that the medication is substantially
likely to improve her ability to communicate appropriately
with counsel and assist in her defense. The undisputed
medical evidence established that no other medical treatment
is likely to have any beneficial effect.”)]. After
psychotropic medication was involuntarily given to Ms.
Everage, a final competency hearing was held on August 22,
2006. At that time, Ms. Everage was found to have recovered
from the mental disease or defect rendering her incompetent
to aid in her defense. [Id. at R. 72]. All criminal
charges against Ms. Everage were dismissed on oral motion of
the United States, and she was released from custody.
[Id.]. Ms. Everage, however, was “strongly
encouraged to continue with medications prescribed at the
Federal Medical Center at Carswell” following her
release on August 22, 2006. [Id.]. Ms. Everage filed
her Civil Complaint in this action on June 5, 2017. [R. 1].
She contends that she has suffered injuries resulting from
her court-ordered use of psychotropic medication while
imprisoned at FMC Carswell, and she is seeking compensation
from the United States. See United States of America v.
Mary Joe Everage, 7:05-CR-11-DLB-1, [R. 14 (requiring a
psychological examination of Plaintiff); R. 28 (finding
Plaintiff mentally incompetent to aid in her defense, and
requiring her to undergo treatment while in the custody of
the Attorney General); R. 63 (authorizing the involuntary
administration of antipsychotic medication to Plaintiff)].
She seeks $350, 000.00 in damages plus legal fees and costs.
[R. 7; R. 26; R. 46; R. 53 (Plaintiff currently seeks $87,
500.00 in attorney fees)].
United States has moved to dismiss this action arguing that,
because Ms. Everage did not first exhaust her administrative
remedies, the Court is without jurisdiction to preside over
this matter and it must therefore be dismissed, Cole v.
Growse, 5:07-CV-61-KSF, 2008 WL 695355, *3 (E.D. Ky.
Mar. 12, 2008) (citing 28 U.S.C. §2401(b) and 28 U.S.C.
Everage does not dispute that she never filed an
administrative action for relief, although she argues that
she filed the Complaint in this action within the time
allowed by the statute of limitations. [R. 42]. Likewise, she
submits that the various exhibits and documents she has filed
into the Record, [See, e.g., R. 42-4], demonstrate
the validity of her claims, which she believes are sufficient
to survive a motion to dismiss. [R. 42].
to her arguments, the United States emphasizes that Plaintiff
does not dispute that she did not exhaust her administrative
remedies, and continues to claim that the above-styled case
should be dismissed for the undersigned's lack of subject
matter jurisdiction, due to the fact that Plaintiff has yet
to file for administrative relief. [R. 54].
the Court can address the merits of Ms. Everage's claims
in this action, it must have subject matter jurisdiction. In
order to have subject matter jurisdiction in this matter, the
record must establish that Ms. Everage pursued her claim
against the United States administratively prior to bringing
this action. Title 28 United States Code § 2675(a),
provides that “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.” Cole
v. Growse, 5:07-CV-61-KSF, 2008 WL 695355, *3 (E.D. Ky.
Mar. 12, 2008) (citing 28 U.S.C. §2401(b) and 28 U.S.C.
Record in this action reflects that Mrs. Everage's claim
was not administratively pursued. [R. 42 at 2 (“I am
impressed with Attorney Robert M. Duncan, Jr. and his larger
package Of (sic) legal facts”)], reveals undisputed
facts. These facts include that “Plaintiff has not
filed any administrative tort claims with the Bureau of
Prisons.” [R. 32-2 at 2; see also Id. at 3-13
(undisputed business records of the Bureau of Prisons
revealing that Plaintiff did not pursue administrative
remedies)]. In the presence of undisputed facts revealing
that Plaintiff did not pursue administrative relief of her
claims-thereby failing to satisfy the jurisdictional
prerequisites of this case now before the Court-there remains
no basis for subject matter jurisdiction. Thus, the
undersigned is simply without authority to hear the
above-styled case at this time. 28 U.S.C. § 2401(b); 28
U.S.C.A. § 2675(a); Humphrey v. United States
Attorney Gen.'s Office, 279 Fed.Appx. 328, 332 (6th
Cir. May 15, 2008); In re Franklin Savings Corp.,
385 F.3d 1279, 1287 (10th Cir. 2004) (citing
Sisseton-Wahpeton Sioux Tribe v. United States, 895
F.2d 588, 592 (9th Cir.1990)). As a result, the United
States' motion to dismiss will be granted.
is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). The provisions of
the Federal Tort Claims Act provide limited consent to sue
the United States, “but such consent is strictly
limited to the terms of the enabling statutes.”
Cole v. Growse, 5:07-CV-61-KSF, 2008 WL 695355, *3
(E.D. Ky. Mar. 12, 2008). To access this limited waiver,
“a potential claimant must first present a request for
administrative settlement to the responsible agency.”
Id. (citing 28 U.S.C. § 2675(a)); see
also 28 U.S.C. § 2401(b). Here, because Plaintiff
has not yet sought administrative relief, [R. 38-2; R. 42 at
2], the above-styled case must be dismissed, because the
United States District Court for the Eastern District of
Kentucky is without subject matter jurisdiction to hear this
case until Plaintiff pursues and exhausts her administrative
remedies. 28 U.S.C. § 2401(b); 28 U.S.C.A. §
2675(a). Accordingly, IT IS ORDERED:
1. Defendant the United States of
America's Motion to Dismiss for Lack of Subject Matter
Jurisdiction, [R. 38], is GRANTED, all
pending motions ...