United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
matter is before the Court upon the United States' Motion
to Dismiss for Lack of Jurisdiction. Plaintiff Minnie Warren
initiated this medical malpractice action following treatment
she received at Highlands Regional Medical Center at the
hands of Dr. Antara Pothuloori, an employee of Big Sandy
Health Care. Because Big Sandy Healthcare and Dr. Pothuloori
are classified as federal employees under the Federally
Supported Health Centers Assistance Act, Ms. Warren is
required to exhaust administrative remedies prior to
initiating suit, absent some extenuating circumstance. For
the reasons set forth below, the United States' Motion to
Dismiss [R. 4] will be GRANTED.
Minnie Warren filed suit in Floyd County Circuit Court on
June 11, 2018 against Defendants Highlands Regional Medical
Center, Big Sandy Health Care, and Dr. Antara Pothuloori for
personal injury resulting from medical malpractice. [R. 1-1.]
On June 23, 2016, Ms. Warren underwent surgery at the hands
of Dr. Antara Pothuloori at Highlands Regional Medical
Center. Id. Ms. Warren alleges that during surgery
Dr. Pothuloori carelessly, negligently, or grossly
negligently sewed Ms. Warren's left ureter to her left
kidney. Id. at 5. This necessitated an additional
ten surgical procedures to repair and mitigate damage.
Id. Unbeknownst to Ms. Warren, at all relevant
times, Dr. Pothuloori was an employee of Big Sandy Health
Care, which received federal funding pursuant to the
Federally Supported Health Centers Assistance Act (FSHCAA).
[R. 3-1.] Claims against such health entities and their
employees may only be brought in accordance with the Federal
Tort Claims Act (FCTA). When a health center such as Big
Sandy or its employee is sued for medical torts, the employee
is dismissed, and the United States substituted as the sole
defendant. 28 U.S.C. § 2679(d)(2). Therefore, the United
States removed this action from Floyd County to this Court,
and shortly thereafter moved to substitute itself as a party.
[R. 1; R. 3.] This Court granted the motion to substitute,
and defendants Big Sandy Health Care and Dr. Antara
Pothuloori were dismissed from the action. [R. 7.]
the United States has moved to dismiss claims against it on
the grounds that Ms. Warren failed to exhaust her
administrative remedies under the FTCA prior to initiating
suit in state court. [R. 4.] Ms. Warren does not dispute that
she has not exhausted her administrative remedies; in fact,
she readily admits she has not. [R. 5.] However, Ms. Warren
argues that she is entitled to equitable tolling as to her
claims against the United States. Should this Court dismiss
Ms. Warren's claims against the United States, she would
not now be able file an administrative claim because the
statute of limitations has passed. See 28 U.S.C.
§ 2401(b). Ms. Warren argues that such a result would be
unfair, because she “was given no information or notice
from Dr. Pothuloori or Highlands Regional Medical Center that
any potential malpractice suits would be barred under Federal
law.” [R. 5 at 2.] In contrast, the United States
argues that the exhaustion requirement of the FTCA is a
jurisdictional prerequisite without which this Court lacks
subject matter jurisdiction over the claims against the
to dismiss for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) come in two varieties: a facial attack or a
factual attack. Gentek Bldg. Prods., Inc., v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
A facial attack “questions merely the sufficiency of
the pleading.” Id. When a motion raises a
facial attack, the Court must accept all the
“allegations in the complaint as true, ” and
“if those allegations establish federal claims,
jurisdiction exists.” Id. On the other hand, a
factual attack is “not a challenge to the sufficiency
of the pleading's allegations, but a challenge to the
factual existence of subject matter jurisdiction.”
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994). When the 12(b)(1) motion factually attacks subject
matter jurisdiction, “no presumptive truthfulness
applies to the allegations, ” and the court “must
weigh the conflicting evidence to arrive at the factual
predicate that subject-matter does or does not exist.”
Gentek Bldg. Prods., Inc., 491 F.3d at 330.
“In response to a Rule 12(b)(1) motion, the plaintiff
bears the burden of proving jurisdiction.” E.E.O.C.
v. Hosanna-Tabor Evangelical Lutheran Church & Sch.,
597 F.3d 769, 777 (6th Cir. 2010). The United States'
12(b)(1) arguments are properly analyzed below as a factual
attack on subject matter jurisdiction.
the FTCA, tort claims against the United States are
“forever barred” if the Plaintiff does not bring
an administrative claim within two years of the time of
injury. 28 U.S.C. § 2401(b). Ms. Warren underwent the
surgery that precipitated her alleged injury on June 23, 2016
and filed suit in Floyd County Circuit Court on June 11,
2018, just inside the two-year time limitation on
administrative claims. [R. 1-1.] But Ms. Warren never filed
an administrative claim, and she concedes that it is
presently too late for her to do so. [R. 6 at 2.] However,
Ms. Warren argues that the two-year statute of limitations
should be equitably tolled because she was unaware that Big
Sandy Health Care and Dr. Antara Pothuloori were federal
employees under the FSHCAA. Id. Absent equitable
tolling, Ms. Warren argues she would be “deprived of
her 7th amendment right to a jury trial despite the timely
filing of her claim within the 2 year period initially in
Floyd Circuit Court.” Id.
United States argues that the exhaustion requirement in the
FTCA is jurisdictional prerequisite and therefore
nonwaivable. [R. 4-1 at 3.] However, “[t]he question
whether § 2401(b)'s exhaustion provisions constitute
jurisdictional requirements divides circuits and even prompts
inconsistent rulings within this circuit.” Bazzo v.
United States, 494 Fed.Appx. 545, 546 (6th Cir. 2012)
(collecting cases). As the Sixth Circuit noted in
Bazzo, the Supreme Court's decision in John
R. Sand & Gravel Co. v. United States and “an
emerging trend disfavoring equitable tolling in the context
of § 2401(b)” amongst the circuit courts supports
the United States' argument that filing an administrative
claim is a jurisdictional prerequisite. 552 U.S. 130 (2008);
Bazzo, 494 Fed.Appx. at 547. This Court need not
address that issue today, because even if applicable, Ms.
Warren has failed to show that she is entitled to equitable
Court may, in its discretion, allow equitable tolling of a
statute of limitations in order to prevent unjust results. As
the Supreme Court has articulated, courts apply equitable
tolling “in situations where the claimant has actively
pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has
been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass.” Irwin
v. Dep't of Veterans Affairs, 498 U.S. 89,
96 (1990). Equitable tolling is generally unavailable as a
remedy where a claimant has “failed to exercise due
diligence in preserving his legal rights.” Id.
Instead, equitable tolling is “sparingly”
bestowed, and has generally been reserved for compelling
circumstances beyond a litigant's control.
Graham-Humphreys v. Memphis Brooks Museum of
Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000).
a Plaintiff seeking equitable tolling must establish two
elements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010).
However, “[o]utside of the context of a habeas corpus
suit, we look to the five-factor balancing test set forth in
Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988), to
determine whether equitable tolling is appropriate.”
Brown v. Cuyahoga Cnty., Ohio, 517 Fed.Appx. 431,
434-35 (6th Cir. 2013). See also Menominee
Indian Tribe, 136 S.Ct. at 756, n. 2 (noting the Supreme
Court has never found Holland v. Florida's
two-prong equitable tolling test necessarily applicable
outside of the habeas context). Accordingly, to determine
whether Plaintiff's claims should be allowed to proceed,
the Court considers the following five-factor test:
1) lack of notice of the filing requirement; 2) lack of
constructive knowledge of the filing requirement; 3)
diligence in pursuing one's rights; 4) absence of
prejudice to the defendant; and 5) the plaintiff's
reasonableness in ...