United States District Court, W.D. Washington, Tacoma
ANTHONY G. HERBERT, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO
L. ROBART United States District Judge
the court are (1) Defendant United States' motion to
dismiss Plaintiff Anthony G. Herbert's complaint (MTD
(Dkt. # 6)); and (2) Mr. Herbert's motion for leave to
file a Federal Tort Claim (Mot. (Dkt. # 9)). The court has
considered the motions, the balance of the record, and the
applicable law. Being fully advised, the court GRANTS the
United States' motion to dismiss, DISMISSES Mr.
Herbert's complaint without prejudice, and DENIES Mr.
Herbert's motion for leave to amend his complaint.
10, 2017, Mr. Herbert filed a complaint in the Snohomish
County Superior Court alleging several counts of medical
negligence against various employees of the Community Health
Clinic of Snohomish County (“CHC”). (Compl. (Dkt.
# 1-1) at 2-3.) The action was removed to federal court
(see Not. of Rem. (Dkt. # 1)), and, pursuant to 28
U.S.C. § 2679(d)(1), the United States was substituted
as the party defendant (see Not. of Substitution
(Dkt. # 4)). The action proceeded under the authority of the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b). (See Id. at 2.)
United States then moved to dismiss the action for lack of
subject matter jurisdiction. (MTD at 1-2.) It argued that Mr.
Herbert “had not administratively exhausted his claim
because he has not filed an administrative tort claim with
[the United States Department of Health and Human Services
(“HHS”)].” (Id. at 3.)
Accordingly, his FTCA complaint must be dismissed.
(Id. at 3 (citing McNeil v. United States,
508 U.S. 206 (1993).) Mr. Herbert filed a response, in which
he stated that he was “unaware that CHC was a federally
funded clinic” and argued that his complaint should not
be dismissed because “he has alleged factual incidents
that occurred at the CHC dental clinic which caused him
harm” and because “[d]ismissing this case would
allow the defendants to go free.” (MTD Resp. (Dkt. #
10) at 2.)
Herbert also filed a motion for leave to file a claim under
the FTCA. (See generally Mot.) He states that the
court should “allow pro se litigants an opportunity to
cure deficiencies in their papers and filings when it is
determined that there is a legitimate non-frivolous
case.” (See Id. at 2.) Mr. Herbert recognizes
that he must “first file a tort claim pursuant to the
[f]ederal [r]ules, ” but requests that the court grant
leave to amend to cure this deficiency. (Id. at 3.)
United States' Motion to Dismiss
FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies. McNeil
v. United States, 508 U.S. 106, 113 (1993).
Specifically, the FTCA provides: “An action shall not
be instituted upon a claim against the United States . . .
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 . . . .” 28 U.S.C. §
2675(a). Failure of an agency to make final disposition of a
claim within six months is deemed to be a final denial of the
claim. Id. “The requirement of an
administrative claim is jurisdictional.” Brady v.
United States, 211 F.3d 499, 502 (9th Cir. 2000).
“Because the requirement is jurisdictional, it must be
strictly adhered to.” Id. “This is
particularly so since the FTCA waives sovereign
Herbert did not file an administrative tort claim with
HHS-the appropriate agency in this case-before filing suit in
court. (See Torres Decl. (Dkt. # 7) ¶¶
2-4.) As such, he failed to exhaust his administrative
remedies. See 28 U.S.C. § 2675(a). For this
reason, the court GRANTS the United States' motion to
dismiss for lack of subject matter jurisdiction. See
Brady, 211 F.3d at 502.
Mr. Herbert's Motion for Leave to Amend
Herbert asks the court's permission to cure the
deficiency in his complaint. (Mot. at 2-3.) The court
construes Mr. Herbert's motion as requesting leave to
amend his complaint. See Hughes v. Rowe, 449 U.S. 5,
9 (1980). “In general, a court should liberally allow a
party to amend its pleading.” Sonoma Cty. Ass'n
of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117
(9th Cir. 2013); see Fed. R. Civ. P. 15(a).
Dismissal without leave to amend is proper, however, if any
amendment would be futile. Sonoma Cty. Ass'n of
Retired Emps., 708 F.3d at 1117 (“[D]ismissal
without leave to amend is improper unless it is clear . . .
that the complaint could not be saved by any
Mr. Herbert's complaint cannot be saved by any amendment.
See Robinson v. Geithner, 359 F. App'x 726,
728-30 (9th Cir. 2009) (finding that leave to amend would be
futile because no amendment could cure the fact that the
plaintiff had not exhausted his administrative remedies). As
discussed above, Mr. Herbert failed to exhaust his
administrative remedies; no amendment at this time would cure