Tort – FTCA – Sovereign immunity – Statute of limitations

Listen to this article

Where a plaintiff brought a claim against the United States under the Federal Tort Claims Act alleging that dental personnel at the Federal Medical Center at Devens failed in their duty to provide him with timely, adequate and proper treatment, a motion to dismiss the complaint should be (1) denied in part because the plaintiff did not fail to state a claim within the waiver of sovereign immunity in the FTCA and (2) granted in part because portions of the plaintiff’s claims are time-barred under the FTCA’s two-year statute of limitations.

Waiver of immunity

“The FTCA … provides that ‘[t]he United States shall be liable … in the same manner and to the same extent as a private individual under like circumstances.’ 28 U.S.C. section2674. If the FTCA does not provide a waiver of sovereign immunity for the claims that a plaintiff asserts, the Court is without subject matter jurisdiction to entertain those claims. Muirhead v. Mecham, 427 F.3d 14, 17 (1st Cir. 2005). …

“The Defendant argues that [Plaintiff Catalin] Buculei’s negligence claims amount to allegations of constitutional violations, not common-law torts, and thus cannot support an FTCA action. An argument along these lines in a medical (rather than dental) context has found support in at least one Massachusetts court reviewing a state law claim brought under the MTCA, which is similar in some respects to the FTCA. See Garcia v. Essex County Sheriff’s Dep’t, 65 Mass. App. Ct. 104, 110 (2005) (‘the defendant’s duty to provide medical care [to plaintiff], who was in the defendant’s custody, is a constitutional duty, . . . not the kind of duty covered by the MTCA’) (citations omitted). …

“In response, Buculei cites to the seminal Supreme Court case in this area of the law, United States v. Muniz, 374 U.S. 150 (1963), to argue that the government’s waiver of sovereign immunity under the FTCA clearly applies to the claims that he now asserts in this case. …

“Buculei argues that the negligence based upon a failure to provide timely and adequate dental care he alleges here is akin to the failure to provide appropriate medical treatment in Muniz. … The Court agrees. There is no meaningful distinction between the FTCA’s treatment of claims of negligent dental care such as the one put forward in this case and claims of negligent medical care such as the one put forward in Muniz. Indeed, in Swan v. United States, 698 F.Supp.2d 227 (D. Mass. 2010), a claim similar to the one at bar — a negligent dental care claim brought by a prisoner against the staff at FMC-Devens — has already survived not only a motion to dismiss but also a motion for summary judgment. … Regardless of whatever light Garcia may shed on the MTCA, under cases interpreting the FTCA it is clear that Buculei’s claims are not barred by sovereign immunity.  Accordingly, the Court will deny the motion for dismissal for lack of subject matter jurisdiction.”

Time bar

“Count I of Buculei’s complaint is based on events that occurred between April 2006 and May 2007. Defendant says that Buculei should be barred from pressing as much of Count I as arose before December 15, 2006 since he did not file his tort claim with the BOP until December 15, 2008. …

“The Court thus lacks jurisdiction over the portions of Count I that arise from conduct (or omissions of conduct) on or before December 15, 2006 … and to that limited extent the Court will grant the motion to dismiss. The Court does have jurisdiction over the remainder of Count I to the extent it arises out of conduct (or omission of conduct) that took place on or after December 16, 2006 and the remainder of the motion to dismiss Count I will be denied accordingly.”

Buculei v. United States (Lawyers Weekly No. 02-238-11) (11 pages) (Casper, J.) (USDC) (Civil Action No. 09-40215-DJC) (Aug. 4, 2011).

Click here for the full-text opinion.